Good heavens, are you still trying to win? You’ve got an over-developed sense of vengeance. It’s going to get you in trouble someday.
—-Count Rugen, The Princess Bride (1987)
This month, we will focus on being effective in and out of the divorce and family law courtroom. The resources available to us will tackle litigation, mediation, negotiations and trials for both divorce and family law firms. The highlight is Herbert Stern’s voluminous thoughts on trial strategies, previously available in a five-volume collection and now condensed into one essential volume, which is an indispensable addition to your divorce and family law firm’s library. After all, some cases will be tried, and each divorce attorney will be trying to win.
Herbert J. Stern and Stephen A. Saltzburg combined forces to turn Stern’s compelling work on trial advocacy into one volume. Trying Cases to Win: In One Volume should be on every advocate’s bookshelf, including the divorce and family lawyer’s. It is a book for the lifelong study of trials, by law students, young lawyers, and experienced attorneys seeking to win their clients’ causes, including divorce and family law cases. The book tackles trial psychology, real-life problems, and practical persuasion in the courtroom, proving great for your divorce and family law practice. It teaches what to prove and how to prove it.
Stern’s original collection presented his lessons (which are perfect for the divorce and family lawyer) and then “[dipped] into the trial records of great trial advocates to demonstrate how they actually did these chores.” The theoretical was married to the real. His principles were compelling, and the transcript excerpts vindicated his rules, laws, lessons and maxims. Still, for some, the prospect of studying five volumes was too intimidating. Now, there is no excuse, and Stern’s wisdom is readily available to all, including divorce and family law attorneys.
Trying Cases continues the same approach of marrying the theoretical to the real, and lessons are explained in commentary and then proven with actual transcripts. Every divorce and family lawyer can learn from this book. Stern and Saltzburg firmly reject the war story approach of training. “We must understand why people are moved in order to understand how to move them. Once we understand the cause, we can create the effect as a matter of intellect rather than raw instinct or even just past experience.”
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Anyone who has attended a Stern training or read his prior collection knows that he proudly runs counter to certain established tenets of trial advocacy, which applies to divorce and family court cases. He is not afraid to hit them head-on to show the underlying fallacies and weaknesses. He is not afraid to quote from well-known trial advocacy instructors and say, “in the real-life courtroom, this is completely wrong.” He is not afraid to take transcripts of highly-regarded trial attorneys (even his friends) and say, “while this was great, this here was a mistake” or “there is a better way.” Stern and Saltzburg preserve this attitude that truth must prevail over conventional wisdom if you are trying to win in the real world. This is especially compelling in divorce and child custody cases.
For Stern and Saltzburg, the core of trial advocacy is reflected in three rules, each of which is presented in its own chapter: (1) Personal Advocacy; (2) One Central Theme; and (3) Make the Case Bigger than its Facts. These rules flowed from some “serious thinking” and years in the courtroom. Without truly abiding by these rules, good technique is vulnerable to failure:
Before [the “how-to” part of this book], we must learn to regard the trial process as a whole. In plain English, if you want to win in court, you must do more than study the carpentry aspects of the trial—voir dire, opening, direct, cross, and summation. You must develop an overall approach. Trial work must be based on some serious thinking about the nature of the process and the psychology of the people who will be part of it. . . .
Stern and Saltzburg use 412 pages to present 21 chapters on trial advocacy. Their scope spans: personal advocacy, one central theme, making the case bigger than its facts, primacy, recency, frequency, vividness, opening argument (not “statement”), problems to confront in openings, the form of the opening and final considerations, the purpose of direct examination, witness preparation, making a witness invulnerable to cross, exhibits, the purpose, methods and techniques of cross, the three tools of cross, expert witnesses, closing arguments, and preparing and delivering the closing — all great tools to have in your divorce and child custody lawyer wheelhouse. Trying Cases includes selected rules, laws, lessons and maxims for success in the courtroom, applicable to divorce and family court cases. And it includes actual transcripts which prove these points, highlight mistakes and demonstrate the highest level of trial advocacy. Every divorce and family law practice can learn from the teachings in this book.
To give you a flavor of Trying Cases, consider this condensed commentary on jury trials versus bench trials:
The simple fact is that most people decide most issues by their emotions, not their reason. . . . The best explanation for [post-trial interviews of jurors not making sense] is that they simply did what they wanted to, and then found a reason—any reason—to explain the result.
. . . The fact is that very often—all too often—the reasons given by judges in opinions are as far off the mark, or nearly so, as the reasons that jurors give you. Why? For the same reason: because the decision is an emotional one, and the reasons are the intellectual footnotes sought out and then offered to justify a decision that has already been made on a different level or basis. . . .
Indeed, the truth is that all too often judges, on all sides of cases, will actually malform the record and even the precedents in order to come out where they want to.
Stern and Saltzburg founded The University of Virginia Law School Trial Advocacy Institute, now the National Trial Advocacy College.
As an assistant district attorney in New York, Judge Stern conducted the grand jury investigation into the murder of Malcolm X. At the United States Attorney’s office in New Jersey, he prosecuted political leaders, including the mayor of Newark. Stern has taught at University of Virginia School of Law, Seton Hall Law School and Rutgers School of Law.
Professor Saltzburg taught at the University of Virginia School of Law and now teaches at George Washington University Law School. He founded the master’s program in Litigation and Dispute Resolution at George Washington. He has written or contributed to over 30 books on evidence, procedure, and litigation, including Trial Tactics (reviewed in October 2013), as well as numerous law review and other articles. He served as associate independent counsel in the Iran-Contra investigation.
A familiar voice for family law practitioners is Gregg Herman. His most recent contribution is Settlement Negotiation Techniques in Family Law: A Guide to Improved Tactics and Resolution. In essence, Herman has taken his editorial work from The Joy of Settlement and reformatted concepts into his own voice, which is often the voice for divorce and family law attorneys. This 173-page commentary provides a solid foundation for the journey toward resolution. Herman says his book is designed neither for the novice nor for those seeking “a PhD course in settlement negotiations. . . . Instead, it is designed to collate, using one voice, many of the various concepts of divorce settlement negotiations that are discussed in The Joy of Settlement . . . .”
Herman begins with essential negotiation concepts, such as those found in Getting to Yes, which are essential for every divorce and family lawyer to know. He addresses timing, emotions, preparations, disclosure, negotiating with counsel and with unrepresented parties, the four-way meeting, the role of the judge, Planned Early Negotiation (PEN), specific settlement issues, mediation, collaborative divorce, cooperative divorce, creative settlement techniques, divorce settlements and game theory, ethics, Ten Commandments for negotiating, the endgame, and how to become a better negotiator — all of which would behoove the divorce and family lawyer to know of and to implement in their law practice.
Chapter one begins with the Four Principles of Principled Negotiation and illustrates each of his points with clarity:
In principled negotiation, there are four principles: “[s]eparate the people from the problem”; “[f]ocus on interests, not positions”; “invent options for mutual gain”; and “[i]nsist on using objective criteria.”
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[I]f no one is listening, what’s the point in talking?
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For better or worse, getting a client to recognize her true interests and to negotiate for them constitutes one of the chief people problems discussed earlier.
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The key to this principle is to “generate a variety of possibilities before deciding” on a course of action.
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The objective criterion is what a court would likely do at the conclusion of a contested trial.
Herman is a Milwaukee attorney Board Certified in Family Law Trial Advocacy by the National Board of Trail Advocacy. He served as chair of the American Bar Association Family Law Section and contributed to some great, practical resources, including 101+ Practical Solutions for the Family Lawyer and The Joy of Settlement.
Stewart Edelstein is known to trial attorneys through his contributions to periodicals such as Litigation, Trial and The Practical Litigator. His recent work, How To Succeed as a Trial Lawyer, provides 395 pages of wisdom on life in the trenches. He is a concise mentor for newer attorneys learning the art of advocacy:
Over the course of 40 years as a trial lawyer in divorce and child custody cases, I have learned some things worth passing on to those with less experience, and have conveyed practical advice, by publishing scores of articles, giving seminars, teaching students at Yale Law School, and mentoring associates at my divorce and family law firm. You and your divorce and family law clients will benefit from the lessons my students and associates taught me about instructing them effectively. My writing style for this book, based on my role as teacher and mentor, is direct and utilitarian, just as when I teach one of my divorce or family law students or associates one-on-one.
Edelstein illustrates his concepts for increasing the likelihood of success, covers specific techniques for what to do and how to do it and how to avoid pitfalls along the way for every divorce and child custody lawyer to know. He includes practice checklists and sprinkles in humor.
How to Succeed touches numerous topics, collated into 14 chapters. It covers: dealing with clients applicable to your divorce and child custody clients; dealing with everyone other than clients; managing and drafting emails and letters; drafting documents other than emails and letters (internal memos, complaints, motions, briefs, answers, discovery, jury instructions, settlement agreements, etc.); preparing for, taking, and defending depositions, which is useful for your divorce and family law career; mediating commercial disputes; arbitrating commercial disputes; making oral presentations in divorce and family law court; presenting an effective plaintiff’s case in the courtroom; presenting an effective defense in the courtroom; dealing with ethical issues; marketing your litigation practice applicable to divorce and family law practices; coping with stress and creating a life beyond the practice of law; and succeeding as a divorce and child custody trial lawyer.
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Edelstein has taught civil litigation skills at Yale Law School and for the National Institute for Trial Advocacy, all while leading the Litigation Group at Cohen and Wolf, P.C.
Another practical mentoring approach is found in Kenneth P. Nolan’s A Streetwise Guide to Litigation. This collection of articles from Litigation is focused on “how to survive and succeed.” The 205 pages follow three acts: opening thoughts, handling a case and a trial lawyer’s life.
Nolan follows his commentary through 25 chapters, including tips in each chapter. In “The Basics,” he reminds us that like every job, trial work is “mostly monotonous.” How to improve and succeed? Here are some tidbits from the chapter discussion:
- Pretend law is golf, and practice, practice, practice.
- But first put your ego in your purse.
- Confidence is key.
- Writing, too, improves with hard work.
- Ask questions. Millions of them.
- Know more than the experts or the judge.
- In your heart and your head, you must care.
Streetwise takes the law and exposes its demands on the human condition. It then turns problems into plans of action, showing how to speak, write, research, analyze, advocate, and deal with people—everything you were not taught in law school or in your divorce and family law classes.
Nolan specializes in personal injury and wrongful death litigation in New York City. He is a former editor-in-chief of Litigation.
James M. Kramon adds another 173 pages to our mentoring theme with his The Art of Practicing Law: Talking to Clients and Colleagues. His work “is as much a selective memoir as it is a collection of essays about incidents I encountered in my practice.”
Kramon has taken his real life experiences, sometimes reconfigured or renamed to protect client confidences, and exposed them for their emotional effect on him. His introduction explains:
. . . Practicing law presents many dramatic situations. The difficulty is that these situations don’t often present themselves in the public aspects of practicing law. They are the “backstories” that occur in unseen parts of our work. It is in private meetings with clients and others, in behind-the-scenes events and personal reflections that the emotional experiences of my profession are found. This book is about such experiences.
The Art collects 70 essays covering matters large and small, and incorporates discussions of music, painting, architecture, ethics, idiosyncratic personalities and the like. Along the way, the reader may learn the morals of the story and find ways to incorporate ways to add meaning and satisfaction from a life in the trenches, a place frequently visited by divorce and family lawyers.
Kramon is a Baltimore lawyer who has taught at several law schools and published over 70 articles and six books.
Focusing on ADR, Dwight Golann collaborated with colleagues to produce an interesting book-DVD combo pack for all attorneys, including divorce and family law attorneys. His Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates includes a demonstration DVD of the techniques he discusses, including conducting an opening session, eliciting offers, delivering an evaluation, and applying impasse tactics and skills crucial to the divorce and child custody lawyer. While focused on commercial disputes, Mediating offers a potpourri of skills that can be applied in many settings, including the divorce case.
Golann pays special attention to those cases in which litigants have no interest in repairing a troubled relationship or even talking to each other. He goes straight to problem areas like: parties who communicate only through lawyers; hard bargaining tactics (insulting offers, backward steps, adversarial tactics), and stubborn impasses — all of which is frequent in divorce and child custody cases. He shows how to employ skills of valuation, analysis, confidential listener, range bargaining, the mediator’s proposal and other techniques, which the divorce and child custody lawyer can implement.
Golann explains, “This book is four volumes in one. It contains sections addressed to novice mediators, experienced neutrals, advocates, and persona interested in specific subject areas.” He and his contributors use 17 chapters to reach these four groups.
Mediating starts with “A Basic Strategy,” setting out Golann’s six-step strategy as a default framework to effectively deal with conflict:
- Build a Foundation for Success.
- Allow Participants to Argue and Express Feelings.
- Moderate the Bargaining.
- Seek Out and Address Hidden Issues.
- Test the Parties’ Alternatives; If Necessary, Evaluate the Adjudication Option.
- Break Bargaining Impasses.
The DVD shows you how the 370 pages of information play out in real life in your divorce and child custody cases.
So there you have it—a jam-packed month of tips for succeeding in and out of the divorce and family law courtroom. Litigation, mediation, negotiations and trials. Life in the trenches. Finding satisfaction in the divorce and family law profession. It’s all there, waiting for you to learn more and apply it to your divorce and family law caseload.
Herbert J. Stern and Stephen A. Saltzburg, Trying Cases to Win: In One Volume (American Bar Association, 2013). $119.95.
Stewart Edelstein, How To Succeed as a Trial Lawyer (American Bar Association, 2013). $129.95.
Gregg Herman, Settlement Negotiation Techniques in Family Law: A Guide to Improved Tactics and Resolution (American Bar Association, 2013). $69.95.
Kenneth P. Nolan, A Streetwise Guide to Litigation (American Bar Association, 2013). $59.95.
James M. Kramon, The Art of Practicing Law: Talking to Clients and Colleagues (American Bar Association, 2012). $49.95.
Dwight Golann, Mediating Legal Disputes: Effective Strategies for Neutrals and Advocates (American Bar Association, 2009). $69.95.