Litigation in a courtroom can be tricky. Attorneys study and practice for many years before they have a good grasp of how litigation REALLY works. This is real life—not TV—and the reality of courtroom litigation is that it is difficult, extremely demanding and easy to make a mistake. The attorney should have a detailed plan of what will be presented and know why and under what circumstances it will be presented. The attorney should also have an understanding of what the opposing party plans to present. The attorney’s plan, however, is subject to the court’s rules of procedure and evidence—as well as the personal thoughts and legal rulings of the judge. A mis-step by the attorney can allow evidence to come in that the attorney and Client did not anticipate (or want) being offered as evidence. The mis-step may “open the door” for information to be admitted into evidence even when it is damaging to the Client or distracting to the real issues at hand.
The best way to avoid such unfavorable outcomes is for the attorney and Client to think about and address in private each of the issues and all of the evidence—contemplating different outcomes with the introduction of potential evidence. Evidence presentation is not intuitive. It is technical, must serve a specific purpose and carries the very real risk of unexpected responses or rulings. For example, a Client may be convinced that the other parent is a danger to their Child. The Client believes the attorney must present this “evidence” to the court so that the Client will get sole custody of the child What the attorney knows, though, is that under a number of circumstances, it is more damaging to a Client than to the other parent to make allegations that the other parent is dangerous. When a Client has permitted the other parent to have frequent over-night parenting time or to leave the Child in the other parent’s care without supervision; allegations of the other parent being dangerous means the Client has knowingly put the Child in a dangerous situation. No good parent would willingly or knowingly put their Child in a dangerous situation—no matter the consequences. Therefore, if this is the fact scenario, the court may interpret this evidence as the Client is lying or the Client is as harmful and careless with the Child as the other parent.
Another example of unintended consequences is with a financial dispute between divorcing parties. It is common for one spouse to reveal to their attorney less than ethical tax practices or financial shady deals being conducted by the other party. If the attorney has not thoroughly understood the facts and consequences of such a scenario, revealing this evidence as a means to thwart or impeach the other party, may backfire. Courts understand that couples often divide the financial management of a household between themselves. Each party is seen as benefitting from the efforts of the other—just like each suffers the detriment of the other’s poor choices. So, if one party has failed to pay taxes on money received “under the table”, depending upon the circumstances, both parties could be seen as complicit and benefitting from the illegal behavior and the extra tax-free money.
The job of the attorney is to educate the Client with enough information and options so the Client can make decisions and choices that are right for them and their family. Part of this education should be thinking through each issue to determine how the court will likely interpret the matter. Failing to process the issues and understand the likely consequences, will result in unfavorable rulings that were foreseeable and avoidable.