TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #2
September 13, 2012 § 2 Comments
This is the ninth 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 #2 …
Understand the theory of your case, and be able to communicate it to the judge.
Most chancery matters are straightforward, and the issues are fairly easily framed. A divorce on the ground of habitual cruel and inhuman treatment, for instance, requires certain elements to be proven, as does equitable distribution or alimony. Modification of child custody has its own framework of proof.
But when you stray into unfamiliar areas, you need to be able to explain to the judge where you are going and why, and what your authority is on which you rely. A few examples:
- If you are defending on the basis that the court lacks jurisdiction because of the UCCJEA, or because of forum non conveniens, make that clear in your pleadings, and have chapter and statutory verse ready to cite, along with a case or 2 that supports your position.
- If you are pushing a novel theory of law, can you distinguish the cases against you, and can you cite some persuasive authority to get the judge thinking your way?
Don’t forget that a major component of your job at trial is to persuade: to persuade the judge not only of the legal viability of your client’s position, but also to persuade the judge to rule in your client’s favor. Nowithstanding that, I swear that I have, more often than I’d like, sat on the bench scratching my head trying to figure out exactly what it was that counsel was wanting me to do, not only unpersuaded, but also mystified.
As I said, there are many fairly straightforward issues in chancery trials, but some, like undue influence or lack of capacity, or adverse possession, can be challenging not only for the lawyer, but also for the judge. If you can’t present your proof and your authority in a way that the trial judge can understand, expect to fail.
This Tip may appear so obvious that it’s a waste of your time to read it. But take a minute and think back to a trial or motion hearing where you floundered about helpelessly and ineffectively. Might that have been because you never got clear for yourself exactly what it was you were trying to get across or never found an effective way to communicate it?
In one of my first days of classes in law school, the late professor Harry Case in Contracts called on a student to brief a case. The student stammered and stuttered, his frustration made worse by Case’s prodding, until he blurted out, “Well, I know what I am trying to say, but I just can’t put it into words.” Professor Case glowered at the young man and hissed sarcastically, “Well, you had better learn how to do just that, Mr. _____, because that is exactly what a lawyer is hired to do.”
The corrolary to this Tip is what I call THE GOLDEN RULE OF CHANCERY PRACTICE, which is
“The easier and clearer you make it for the judge to analyze, the more likely it is that you will succeed.”
The Better Chancery Practice Blog 
Judge:
This reminds me of a scenario played out in a circuit court many years ago. The district attorney always objected to the defendant’s proposed jury instructions with (among other objections) “it ain’t the law”.
The judge, obviously tired of receiving this generic objection, asked: Well Mr. DA if this is not the law, what is the law?”
Without blinking an eye the DA responded: “Judge, if this is the law, it shouldn’t be the law.”
That’s a good one. I once ruled that a sole beneficiary should be able to remove an executor on the sole basis that he didn’t like him. Neither lawyer could cite any applicable case law.I said, “If it isn’t the law that a beneficiary can do that, it should be the law.”