Good Trial Strategy: Love Thy Enemy

Most litigants going through divorce feel anger, hostility, rage, and resentment. Part of my job as a zealous advocate is to teach them the courtroom is a poor place to air these emotions.

Few lawyers and even fewer litigants understand the best trial strategy in marital litigation. Perhaps they are victims of the movies Kramer v. Kramer and The War of the Roses. The best strategy is counter-intuitive.

Jesus Christ got it right: “Ye have heard that it hath been said, ‘Thou shall love thy neighbor, and hate thine enemy.’ But I say unto you, “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Matthew 6, 44-45.

In family court, this means litigants do not help their cases by bashing and trashing their spouses. Judges have heard it before and usually find it unimpressive. The spouse with the milder and more reasonable testimony is the more believable witness. Angry, hostile, critical, and vitriolic testimony frequently backfires, making the witness less credible and believable.

When the opposing lawyer asks questions on cross-examination, our client must answer honestly and truthfully. (My proofreading son asks, “Shouldn’t all litigants answer honestly and truthfully?” Yes, they should, but that is a topic for another day.) If I question my client about the opposing party’s faults and weaknesses, the effect is marginal and often ineffective. If the opposing attorney on cross-examination asks our client questions, whose answers establish the misconduct and poor judgment of the opposing party, then the testimony is more forceful, believable, and compelling than if our client volunteered it on direct examination.

Many lawyers love their brutal cross-examination, beating the witness into submission with loud, hostile, and inflammatory questions. Judges are less impressed and may even feel sympathy for the witness. More impressive and effective is the quiet, soft-spoken lawyer who asks the opposing witness respectful questions whose responses convince the judge of the witness’ fault, poor judgment, or dishonesty.

Years ago, my partner Erin Urquhart and I tried a difficult case with custody as the primary issue. Our client, the mother, testified she got a secretarial job after high school. She met the father through her job. She testified how strongly he impressed her. He was smart and witty, with an MBA from an Ivy League university. He was kind and attentive. He treated her well and was a good listener. They married and had two children. He was a good father and a good provider. He was excellent in bed. When he got a better job offer in this area, she gladly left her birth family, friends, and roots to move here with him. He continued his good traits. She then testified about her job and income and other mundane topics. Her direct testimony, lasting 23 minutes in a 5-day-trial, included no facts detrimental to the father. The father’s lawyer cross-examined her, bringing out facts about the father’s abusive nature and his denigration of the mother and her family. On cross-examination, the father admitted having an internet girlfriend to whom he emailed offensive descriptions mocking the mother and her family in crude and offensive terms. The result was a total victory for the mother.

Erin and I learned much from this case. Calm civility trumps hostile aggressiveness. Understatement beats overstatement. The party with the least hatred has a better chance at the most favorable result. When we meet with clients and witnesses, we do not want inflammatory or judgmental adjectives and adverbs such as lying, ridiculous, outrageous, abusive, drunken, or cheating. We want the simple facts that lead one to believe the conduct was dishonest, ridiculous, outrageous, abusive, drunken, or unfaithful. The more our client hates a former sexual partner, the less confident we are of a favorable ruling from the trial judge.

One excellent and experienced family court judge commented, “Many lawyers seek to impress their clients with a withering, dramatic cross-examination. Unfortunately, the individual that needs impressing is not the client, but the judge!”