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A Family Court Judge's Perspective On EFFECTIVE ADVOCACY

Here is an article that Indio Superior Court Judge Dale R. Wells wrote for publication in the Desert Bar Association's, Family Law Section, monthly newsletter (June, 2012, Vol. 6:12). His article gives important tips for us to remember in order to effectively communicate with our judicial officers, whether as attorneys or self-represented parties.

T.W. Arnold


Effective Family Law Advocacy - A Tale of Two Hats

by Judge Dale R. Wells

In some common law jurisdictions, like England, the legal profession is split into two different categories: Solicitors and Barristers. Solicitors are the lawyers who have direct interaction with clients. They do transactional legal work, negotiate contracts and draft legal pleadings. Barristers are the "designated hitters" of the legal profession. The Barrister is retained by the Solicitor, not the client, when it is time to take a matter to court. Barristers are the legal practitioners who actually argue the case to the Judge.

The fact that these two distinct roles have evolved over centuries speaks to how different these functions really are, and reveals that each requires mastery of divergent yet complementary skill-sets. Of course, in our court system, the lawyer wears both Solicitor's and Barrister's hats. But it occurs to me that it might be helpful if attorneys would try to keep in mind which hat they are wearing at any particular time. This recognition has important implications for effective advocacy by American family law attorneys. It creates an opportunity for better guiding your clients. Moreover, proper use of tools of persuasion may enhance your reputation within the judicial community and improve your outcomes.

This occurred to me while I was reading an article by Jerry Weissman entitled "Less is More - The Proper Use of Graphics for Effective Presentations". This article is one of several in "15 Successful Communications Lessons (Collection)" (Magnacca, Mark (2010-06-30), Pearson Education (US), Kindle Edition), an anthology I highly recommend.

For instance, Weissman points out that there is a fundamental difference between the purpose and effect of a business document (i.e., a metaphor for your OSC declarations) and a presentation (your oral argument).

Perhaps you've sat through presentations in which this difference was not respected. Many presenters treat their presentation as a document. They prepare their PowerPoint slides to exactly reproduce the text of a "document", and then they read their PowerPoint slides aloud as their presentation. In essence, that exhibition becomes nothing more than a "data dump" of the underlying "document". If you've ever sat through one of those, you know how frustrating and boring they can be. The listener completely loses focus, because he or she is overwhelmed with data or is being told what they already know. Besides, you can read as well as the presenter can!

On the other hand, you may have sat through presentations that were engaging and captivating. What was the difference? For the successful advocate, one huge difference was probably that their focus was on the "pitch," and not merely a rehash of the voluminous data behind it that is already a part of the record. It's not that the data disappears; rather, it is a launching point for helping the Court to interpret the data in terms of your client's "plight" and the principles of the law and available remedies. Of course I am not suggesting that you invent a spin for your client - I am suggesting that you consider presenting the essence of your client's case effectively.

Remember: A presentation is never a document. If you treat it as one, it becomes static and lifeless. Moreover, in a presentation less is more. Weissman suggests that when a presenter is preparing his or her presentation, the rule of thumb should be "When in doubt, leave it out." Don't overwhelm your audience with a "data dump" of your "document". By ignoring the different functions that pleadings and oral argument serve, the presenter loses a valuable opportunity to explain their client's case in an interesting and meaningful way.

How does all this apply to lawyers, and especially family law attorneys?

First, when you prepare your OSCs or for oral argument or trial, I suggest that you keep in mind that you wear two hats. You are, in effect, wearing the Solicitor's cap when you work with your client in drafting the pleadings. As a Solicitor your job is also to give your client a reality check about his/her wants and expectations - and what the law can and cannot do for him/her. In preparing your documents, you certainly want to include everything your client wants to say - and to put it all in the most convincing and favorable light for your client. You may need to back it up with voluminous writings (although knowing what to attach and what to leave out is an under-valued art form).

When you come into court, you are no longer wearing the Solicitor's hat; you are wearing the Barrister's hat (or should I say "helmet"?). Your job in court is not to do or say everything your client wants you to do or say or to put on a show and posture; your job is to make an effective presentation to the court - a pitch that is designed to put the best possible face on your client's case. Otherwise, you may unwittingly do all concerned a disservice.

This is where the rules of effective presentation come in. The judge is your target audience, and your job is to make it as easy as you possibly can for the judge to follow your reasoning so he/she can reach the "right" conclusion.

Resist pandering to your client. He/she is looking for an effective advocate. He/she may be momentarily blinded by emotion and outrage, but that is the very reason the client has hired you to put their case before the court persuasively. If you simply channel their venom, you will likely be no more effective than they would be if they had been self-represented. If you engage in inflammatory posturing and bombastic bluster, you may impress your client for the moment with your aggressiveness. But in the end, you will likely lose your real audience - the judge! Never forget that it is you who is the professional, not your client. You, as the Barrister, are supposed to be the cool voice of reason convincing the judge to reach the right result, not the client's alter ego. The difference is easy for bench officers to spot.

Clients come and go, but your professional reputation will accompany you to court for years to come. Is it really worth sullying your credibility by approaching every court appearance with a flamethrower? You can do yourself and your clients a great benefit if you remember that in your office you may be a Solicitor, but in court you are a Barrister. You also give honor to the profession.

So how might you go about planning your presentation? Keep in mind that less is more. Your "inner Solicitor" has already put tons of data in the reams of paper you prepared, served and filed. Are you simply going to regurgitate the data? Not if you approach your court appearance as a presentation. We do read the files so you don't need to regurgitate everything in the declarations!

Tap into your "inner Barrister". Rather than overwhelming the judge with a "data dump" of your documents, how about presenting a concise summary that gives the big picture in a considered fashion, including using props? If the issue is child support, you could provide an Xspouse printout reflecting the numbers you think the court should use. If the issue is arrearages, you could give a one-page summary of the total and the way it was calculated. If the issue is something that is not so amenable to a simple spreadsheet, you could use bullet points to touch on the key issues you want the judge to consider. But whatever it is, consider a balanced argument that poignantly expresses your client's aims and needs within the framework of the justice system.

Here's an idea you might consider. You've already included your facts and data in your pleadings. Why not distill your courtroom presentation into a few bullet points - perhaps by preparing a simple PowerPoint to focus on the main points of your argument, or even a chart or giant post-it note on an easel? Even if you don't want to project your PowerPoint on the courtroom equipment, you can still use it - either on your laptop at counsel table, or as printed notes, to help you - and me - to focus briefly on each of your key points, without belaboring or repeating them. If you make your presentation captivating, by focusing on the big picture, and not the minutia or emotion underlying the conflict, you'll likely find that you achieve better results.

Teachers do this all the time. They prepare one outline to cover some particular subject matter. The outline might be expanded into a document for publication, or it might be simplified into a PowerPoint for presentation. The same material is handled one way if it is going to be published, but it is handled in a totally different way if it is going to be presented.

As a lawyer, you have all the facts and data at your disposal. As a Solicitor, you have put it into a "document" and published it to the court and the opposing side. So, when you're preparing yourself as a Barrister for your court appearance, why not take the extra step and distill the "document" into an effective presentation?

It helps us all for you to remember which hat you're wearing.

Judge Dale R. Wells