In the first part of this blog post, we presented 5 tips from retired family law judge and CEB author Hon. Frederick A. Mandabach to help practitioners best approach family law hearings and trials. Here are 5 more inside tips from the judge.
- Present Your Evidence Thoughtfully. Although there’s no special body of evidence for family law, the family law practitioner will have a level of comfort with evidence only if he or she has thought through the proper manner in which to introduce it. Some of the evidentiary problems frequently encountered in family law are those dealing with documents of title and the presumptions relating to them, proof of payment of obligations, and the introduction of records of banks and other institutions. Family law matters often turn on statements made in the past, so one needs to be clear on what is and is not hearsay and the exceptions that apply if it is hearsay. Be prepared to respond to evidentiary objections and to raise them if appropriate. It can be very helpful to chart out the possible evidentiary objections well in advance of the trial and put the notes into a folder.
- Protect Your Credibility. If you plan to return to a particular court, by all means maintain your credibility. From time to time, a lawyer will cite cases for principles of law not to be found in the text or will vigorously argue “well-known rules” that appear nowhere in print. Anyone can make such a mistake on occasion. If a lawyer does so too often, however, judges tend to look askance at his or her work and pass the word to other bench officers.
- Protect Your Reputation. It pays to be kind to court staffs. They are prone to tell their judges about certain lawyers who are unctuous to the judge but dreadful to the staff and your reputation will suffer.
- Conserve Time. Judges appreciate attorneys and litigants who save the court time. If the judge has read and considered your points and authorities or documents, you don’t need to repeat them to the judge. If you have learned to “read” the judge and believe he or she is persuaded to adopt your view of the case, you could ask if he or she would like further argument or a question answered. If the other side dissuades the judge from your position, you could then present counter-arguments. If the judge still agrees with you after hearing the other side, there is certainly no reason to argue.
- Be Cautious about Continuances. If requesting a continuance, make sure it’s truly needed. Courts and attorneys are subjected to considerable criticism for needless delays. For a negative example, there is a temporary order for child custody or for the temporary use of an important asset and when the time for trial arrives, the attorney does not. Someone will appear for the absent attorney on the date of the hearing, with no advance notice to the other side, and request a continuance. Sometimes, there is a legitimate reason; sometimes there is not. If a continuance is truly needed, make a record because, without one, you may not be able to show what you did to prevent unnecessary delays.
Family law judges recognize that the tasks facing family law attorneys and litigants are terribly demanding. Nevertheless, they maintain expectations of how attorneys and litigants ideally should prepare and present their cases. These expectations aren’t hard to ascertain, and striving to meet them can make family law practice a more positive experience for everyone concerned.
The entire article by Judge Mandabach from which this material was excerpted is in CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 2, a must-have resource for any attorney who wants to excel at navigating the world of family law cases, from filing initial pleadings through through hearings or trials. And don’t miss the upcoming CEB 2012 Family Law Conference, Recent Developments in Family Law Practice, and Drafting Family Law Agreements in Costa Mesa on Nov. 16-17.
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