I was in trial recently and it’s always helpful for me to write down a few thoughts for future reference. Below are some random musings on how to win or lose a trial.
- There is a wart or booger in every case – the bad fact or law that is driving the case to trial. Instead of running away from weaknesses in a dispute, a good trial attorney will directly confront the wart/booger and strategically figure out a way to mitigate its impact. This requires a solid relationship between an attorney and his client. If the client doesn’t trust her attorney, they will revert to their natural inclination to avoid or deny weaknesses in their case. A witness that admits they were wrong in one instance, gains credibility for when they say the booger in their case doesn’t really matter. In contrast, a party that simply ignores or denies the other sides argument will come across as unbelievable, ignorant and selfish.
- Controlling the narrative of the case is critical. If a case goes to trial it’s because two or more sides disagree about the key facts and law involved. Each side has a story to tell. Whatever party controls the narrative is more likely to win. If a trial lawyer is able to dictate the issues discussed during trial, it steers the focus away from the wart or booger referenced above. Thinking deeply about the a compelling theme and clearly articulating a party’s story is fundamental in controlling the narrative.
- Technology matters. I now use an iPad in every trial or hearing. The TrialPad app has revolutionized how evidence is presented. Using an Apple TV, I wirelessly linked into the court’s audio/video system. It’s a slick setup. With TrialPad, I’m able to blow up documents, highlight key sections, and compare documents side by side. It is engaging, quick and easy. During this most recent trial, the opposing attorney dropped his exhibit notebook twice. Papers went flying everywhere, he exclaimed, “Shit!” which likely made it onto the record, and it was cumbersome for everyone to switch back and forth between paper exhibits. People today expect videos, charts and professional presentations.
- Organizing the closing argument first drives everything else. As a DA, I learned the importance of thinking about what I wanted to say in my closing argument and then working backwards. I typically create a basic slideshow (PowerPoint or Keynote) with the applicable law and key evidentiary points. This process is intertwined with developing a theme and narrative for the case. The evidence I want to bring in – whether it be on direct or cross examination – is driven by my closing argument. My opening statement and theme are driven by my closing argument. Everything is driven by the closing argument. There’s no point in asking a question or introducing a document if it doesn’t support a point made in closing.
- Researching legal issues in advance is necessary. The best evidence in a case is usually derived from the other side. Especially for trials to a judge, knowing the applicable law cold is essential. In my recent trial it was evident that the opposing attorney hadn’t done his homework. His client admitted to a number of key things on cross-examination without understanding the implications. Only after my closing argument did opposing counsel and his client appreciate the significance of a seemingly innocuous admission on cross.
- Checklists are helpful. An issue in this trial was attorneys fees. In a divorce, a party may be awarded all or part of their attorneys fees from the other party under C.R.S. 14-10-119. There are necessary elements that must be proved to obtain an award of fees. We were at the end of the trial, everyone was tired, and the opposing Aspen lawyer made a critical mistake – he forgot to ask his client how much fees were owed. Realizing his mistake after he rested his case, the lawyer pleaded for the court to allow him to ask a few more questions. The court allowed him to do so, but stated he was only considering it for a limited purpose. It remains to be seen whether the Aspen attorney made a $50,000+ mistake, but a checklist for what evidence was needed would have likely prevented such a gross oversight.
The above is obviously not an exhaustive list of what it takes to win or lose a trial; each case warrants special consideration. The bottom-line is that trials require a lot of thought and preparation. If a lawyer or party thinks they can “wing it,” they’ll likely be in store for an unpleasant surprise.
I’m pleased to announce the formation of Reynolds, Kalamaya & Voboril, LLC (RKV Law). We are thrilled with the response from our clients, family and friends on striking out together. More to come shortly….
Welcome to 2014. New laws are now in effect for Aspen DUIs and Vail DUIs, especially how those cases are handled with the Colorado DMV. Read more here.
In addition, those filing for divorce must aware that Colorado now has a significantly different law on how maintenance/alimony is analyzed in 2014 and beyond. Make sure your Aspen divorce lawyer knows about the change. To see more about the amendments, click here.
Finally, as has been widely reported in the news, recreational marijuana is now perfectly legal in Colorado. By all accounts, the transition went smoothly. There are no retail marijuana stores currently open in Garfield County or Aspen. They are coming, though. Contrary to other mountain communities, both Vail and Eagle County are holding off on allowing recreational marijuana for now.
We are in the midst of Aspen’s prime tourism season. It will be interesting to see the effect of “marijuana tourism” in Aspen next year.
The New York Times has a good article about Bode Miller’s recent custody battle. The case surveys a couple of issues – relocation of a parent and jurisdiction in Family Law – that will be covered in more detail in upcoming posts.
[Update on 12/1/2013: A New York court reversed course last week and ordered Miller to return his 9-month old son to the boy’s mother. There is an upcoming hearing on December 9.]
A long-form article from the NY Times Magazine on the pros and cons of women leaving the workforce, or “opting out,” to take care of children. Well worth the read.
Interesting article on the cost of divorce online at the Washington Times. According to the article, Avvo performed a survey of consumers and attorneys on the priority of concerns of those going through a divorce. The cost of divorce was #1.
As the author points out, it is nearly impossible to predict the cost of a divorce. An attorney has little control over the other party, the judge, or the opposing attorney. If children are involved, the cost of a divorce in Colorado is generally higher. Similarly, the costs rise dramatically when a parent wants to relocate, a party tries to hide assets or income, especially if they are self-employed, or the parties cannot be civilized and communicate on simple issues.
Each divorce is different. For those considering a divorce in Colorado, I suggest they at least consult with an attorney about their options before filing a petition and, especially, before signing a parenting plan or separation agreement. Most family law attorneys do not charge for initial consultations, and some offer unbundled legal services. Having a lawyer review a final agreement, or represent you for one hearing, is money well spent because it reduces the risk of issues coming up in the future. As in all walks of life, you get what you pay for.
The Denver Post has a fairly extensive article covering the recently-passed “Colorado Civil Union Act” that’s headed for Governor Hickenlooper’s desk. As the Denver Post headline notes a civil union for a same-sex couple is different from marriage. That difference is non-existent for Colorado domestic-relations law.
The Civil Union Act provides that a civil union in Colorado will be treated essentially the same as marriage for purposes of a dissolution, separation or annulment. For example, a same-sex couple contemplating a civil union can enter into a pre-nuptial agreement. See C.R.S. 14-15-108. Colorado case law interpreting marital agreements will apply to agreements relating to civil unions. C.R.S. 14-2-307.5. And a divorce between same-sex couples will be treated the same as a dissolution of marriage of a man and woman in Colorado. See C.R.S. 14-10-106.5 & 14-15-115.
Nevertheless, we will have to wait and see whether the Colorado courts interpret the Civil Union Act differently for purposes of parenting rights, disposition of property, maintenance and the like. There will likely be some unintended consequences and wrinkles in the law that will crop up in the future.
The other interesting legal issues are noted below:
· There’s a privilege for communications between same-sex partners. See C.R.S. 13-90-107.
· Same-sex partners are now entitled to damages for wrongful death, emotional distress and other personal-injury claims.
· Probate and estate-planning aspects for civil unions are also treated fairly similar as a marriage between a man and woman.
· A right to claim a homestead exemption or seek protection against attachment, execution and garnishment of property.
UPDATE (March 21): The Civil Union Act was signed into law today by Governor Hickenlooper.