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How to lose your case



In many cases lawyers find that their clients are their own worst enemies. When you hire an attorney you are looking for someone who will speak for you. That means that you have to do what it takes to find someone you trust. Once you find that person, however, you have to trust them.


Clients do a number of things to derail their own case.


Never interrupt a Judge. That may seem like a no brainer but clients are regularly speaking out in the middle a Court hearing. If you have something important to say write your lawyer a note and hand it to them.


Don't raise your hand. I have seen the color in many a Judge's faces rise as litigants raise their hands in Court. Court is not school, we don't raise our hands. There is a procedure to Court, a time to speak, a time to let the other side speak and a time to respond. Raising your hand in the middle of an argument is taken as an insult to the solemnity of the Court by many Judges.


Do not address the other side or their lawyer. Court is not a conversation back and forth. It is hard, especially when your ex is accusing you of vile things, but you must keep quiet. The calm respectful client is always more successful in garnering the Court's sympathies in the long run.


Leave the tasteless clothes in the closet. Believe it or not I have seen Defendants in Protection from Abuse Court wearing t shirts with offensive sayings and images on them, I have seen Litigants in support court wearing their "It's all about the money" jacket covered with gold money rolls, and I have seen many women dressed like they are ready for a night of clubbing in custody court.


Remember that the number one thing we are trying to convey to the Court is respect. Judges and Masters listen to people all day and, like it or not, they are evaluating not only what they say but how they present themselves. Simple is best. You don't need nor want to go out to buy your first suit for court. You should wear something that would be appropriate for a serious occasion in your life like a graduation ceremony or a church service.


I have many clients worried about showing up in their work attire. That is fine. If you pour concrete for a living and have left work in the middle of the day to come to Court its fine to have jeans and a work shirt on. You are taking Court seriously by being there in the middle of your work day. It is important to wear something you would be comfortable in but remember to show respect to the Court by keeping it modest and simple.


Don't react. Don't mutter or mumble, don't roll your eyes or glare, and don't get mad. Remember that the Judge is watching you the same as we are watching her. A Judge is more likely to respond to litigants who are calm cool and collected than to ones who are barely holding it together. That goes not only for you but any friends or family that are in the Courtroom. I have had client's reprimanded because their mother or sister was making faces in the Courtroom. Getting yelled at by a Judge never helps your case.


You hired a professional, trust them. One of the main jobs of an attorney in Court is to edit down the case into manageable concepts for the Judge. Most clients forget that the Judge or Master spends all day every day listening to people argue. Black robes aside, Judges are just people. They get tired, they get bored, they stop paying attention.


A lawyer's job is to spell out the portions of the case that they feel will sway the Judge on that day at that time. A good lawyer will change his or her case presentation throughout the day in Court. If you have hired an experienced litigator they are watching the Judge or Master for signs that they are receptive or not receptive to an idea and changing strategies on a dime to fit the Judge's reaction.


Sometimes that means that arguments get set aside. Zealous representation does not always mean beating an argument into the ground. Sometimes it involves leaving an unwinnable argument behind so that you can get other things that you want. Our clients don't spend their days arguing cases like we do so they may miss the subtle cues. A lawyer who has been in front of a Judge 100 times has learned that, when he puts his glasses down he is fed up, or that, if she leans back in her chair, she is done listening. Judges have tells and, just like in a poker game, knowing the tells and reacting appropriately can be the difference between winning and loosing.


I always remind clients that the true value of an attorney is his or her objectivity. That is why no lawyer should ever represent him or herself. There is no objectivity. Clients want to be heard. They want everyone to know how they have been wronged and how the other party is distorting the truth. If you have communicated well with your attorney she knows what your priorities are and will work toward them. Sometimes without you getting a chance to say your piece. Clients who interrupt or talk over their attorneys are not helping their case.


Just last week I was litigating a case where the Judge was leaning strongly toward the other side from the start. That person thought they had it in the bag and started talking over his attorney. He thought this was his opportunity to vent. His inexperienced attorney did nothing to stop him. The Judge said "See, you hired an attorney, and he knew when to shut up. You didn't. Now you've made their case for them." In the end we got what we wanted. My client was writing me notes furiously the whole time asking me to speak up and challenge the awful things he was saying about her. But, knowing what was happening, I said nothing. My silence and the opponent's venting is what won the day. In the end, after the Judge's comments, she thanked me for not letting her respond.


Never try to distance yourself from responsibility. If a Judge or Master asks you about prior mistakes. Own them. Judges are tired of excuses. The quickest way to annoy a Judge is saying things like "yes, I did "X" but it wasn't my fault. It was only because of ..." What most Courts are looking for when they ask about these things is a straightforward answer. For example, if the Court asks you about your drunk driving conviction from 2 years ago the response should never be, yes but... The correct answer is yes and here is what I have done since then to make sure that nothing like that happens again.


Judges have also frequently lost sight of just how intimidating Court can be for those who don't spend their days there. You want to answer questions and answer them quickly but this often leads to clients giving incorrect answers. I find many people answering the question they think was asked and not the one that was actually asked. Always ask for clarification if you aren't sure. Lawyers and Judges frequently speak in terms we easily understand that you might not. The best thing to do is to say, "I'm sorry, I'm not sure I understand the question." That gives the Court and your attorney a chance to clarify for you. If you answer a question incorrectly even innocently it can look like you are lying to the Court.


Find the fine line between being actively involved in your representation and micro managing. Many clients want to dictate every aspect of their case. This can hamstring your attorney and keep you from getting the best representation possible. It can also cause animosity between the client and the attorney. Attorneys are negotiators and litigators by trade. They know opposing counsel and Judges better than you do. They know the best ways to get the results you want. That being said, legal representation should be a cooperative effort. I am here to advise you about strategy and making sure that your rights are protected but the client is always the one who has to live with the consequences of the decisions made in their case. They should always be part of the decision making process. I frequently sit down with clients, lay out the options before us and try to flesh out all the pros and cons including legal fees and costs then I have a frank discussion with clients about how they want to proceed. I work for the clients not the other way around.


A great example is in Divorce cases where sentimental items are concerned. A client might want a piece of personal property that the other side also wants. It may cost way more than that item is worth to litigate over it. You should be able to sit down with your attorney and discuss not only the dollar value of the asset but the sentimental or psychological value. I have fought for moths over items worth less than $100.00 because they were priceless to the client and I have compromised valuable marital assets in exchange for the peace of mind of getting that divorce decree in hand sooner rather than later. All value is relative and, in the end, the client should decide. The trick, however, may be to let the attorney use the item in question as a bargaining chip even if it isn't something you want. By holding somethings back the attorney may be able to get you other things that you value more highly. Its all in the strategy.


I work with clients from all walks of life and know that the ones with whom I can build a good working relationship are always the ones who will get the best results in the long run. When you hire a professional you should be able to work with that person to get exactly what you want in the simplest way possible.