TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3

August 9, 2012 § Leave a comment

This is the eighth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #3 …

Use the trial checklists as your template for proof.

Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.

The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”

If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.

How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.

A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.

Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.

As you will see, there are checklists for various issues. Use them and win.

When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.

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