The longer I was able to practice family law in South Carolina, whether as a sole practitioner or as a fulltime mediator, the more convinced I became that it was absolutely essential to “deconstruct” the case I was preparing for trial or mediation. Stated differently, I found it was critical that I try my case (or mediate it) from “the end back to the beginning”…I found that my chances of a successful outcome were dramatically increased if I tried – or mediated – a case from Z to A.
As a family law attorney, isn’t it a monumental waste of your time to develop a trial strategy without first having a bedrock understanding of, and a laser-like focus on, the outcome you want to achieve? Do you typically “construct” your case from the ground up by calling your witnesses, introducing your evidence, and conducting your cross-examination as if you’re putting together the pieces of a jigsaw puzzle during your trial, hoping that the pieces all fit together perfectly by the trial’s end and in such a way that you’ve made a compelling case for your trial judge?
The very best family law attorneys who came before me had already prepared their “outcomes” before they ever called their first witness; and it was fascinating to watch these attorneys carefully deconstruct their case, witness-by-witness, exhibit-by-exhibit. As a basic example of this strategy, and if the client was seeking an award of alimony, this attorney in his or her pretrial preparation would have already prepared the following:
- the client’s testimony to address the “thirteen alimony factors”, factor-by-factor, in detail;
- the client’s carefully prepared and accurate financial declaration demonstrating the need for an award of a specific amount of alimony necessary to make up the monthly “shortfall” (the attorney would make sure that any discretionary items in the financial declaration were not only reasonable, but purposely undervalued, making them more easily defensible under cross-examination);
- a CPA’s review of various alimony amounts to ascertain the “after-tax” values in the event the judge might make the alimony award taxable to the client;
- the cross-examination of the potential payor spouse, with a careful consideration of calling that spouse as an adverse witness in the event your client is the plaintiff.
Let me emphasize that your “job” as your client’s advocate is to make it easier for your trial judge (1) to understand your case thoroughly, and understand it sooner rather than later, and (2) to very comfortably decide the trial issues in your favor.
In the near future, I’m going to discuss how you (and your mediator) can also use this same “deconstruction strategy” in all of your mediations to significantly increase your opportunities for a successful (and final) resolution of your client’s case.