A good lawyer knows the law, and a great lawyer knows their judge.
In matrimonial and family law, there are no jury trials. The judge is the audience; the one and only who needs to be persuaded. Like the rest of us, that judge is human and may get up on the wrong side of the bed on different days, making what might seem like inconsistent rulings. This can feel arbitrary to divorcing parties on the receiving end, who are already being doled generous helpings of uncertainty in the shifting landscape of their lives.
Purportedly, the judge only wants to get at the truth — to make the best decision for all sides based on the facts. “Purportedly” being the appropriate word here with so much controversy often surrounding individual judge’s motives, styles, and decisions by various constituents of the peanut gallery comprised of the matrimonial law professional inbreeds, such as attorneys, other members of the bar, and divorcing parties passing through the system.
Be clear, precise and tell the judge exactly what you want upfront. This is not a game of manipulation or reverse psychology, where you say one thing but really mean and want the opposite. Intertwine your specific story with the relevant case law. It’s especially helpful to come armed with recent decisions that that particular judge made on a similar case. If you find yourself being long-winded with a judge, you’re probably losing them.
Have you ever heard the expression, “Too much story!” That person that may or may not have interesting and poignant anecdotes to share, you’d never know, because, by the time they get to the point and deliver the punchline, they’ve lost you in a sea of extraneous words. Rule number 1, when in front of your judge, don’t be that person. Don’t confuse this with avoiding telling your story altogether. One of the most influential members of the NY Bar used to tell attorneys time and again, “I need to hear the story; that is what family law is; tell me this family’s story.” Your task becomes being an adroit and effective story-teller, conveying the relevant facts and circumstances.
As important as it is to know your judge and how the presentation of your case will resonate with them, your entire strategy cannot hinge on playing to one judge’s likes and dislikes. Judges often change and swap out cases. For example, your attorney might be catering to one particular judge, and then when it comes time to do the support, the judge says, “I’m sending this down to a magistrate to decide.” Hopefully, your attorney had not been putting all of their eggs in that one basket.
The case has to be solid enough to present in front of any judge. To that end, it’s important to keep a very clear paper trail and track record of what’s going on, so that a potential new judge will be able to pick up the case seamlessly.
Sometimes more than one judge works on a case at the same time. A divorce case that involves Child Protective Services may be adjudicated in both Family Court and Supreme Court. Oftentimes cases like these will get condensed to avoid the left hand from not knowing what the right hand is doing.
Another factor that most attorneys look at is where the judge is in their career. They might have developed different leanings based on what their own immediate responsibilities are, what their culture is, what their peers have been doing, and what institutions they’re involved with at the time.
The attorney you hire should be flexible, able to adapt within their strategy very quickly when they’re building a case; even though they are doing their due diligence to tailor the case to your judge, they really have to create a consistently irrefutable fact set.
Along the same lines as knowing your judge is knowing your courthouse. I sometimes get calls from people in Westchester or Upstate New York, for example. I advise them that a Westchester litigation case is, most often, best represented by a Westchester attorney who has spent significant time in the county courts. You want an attorney whom the judges are very familiar with and are certain will keep to their word because of their prior experiences working together.
Sometimes people don’t have all the information they need, or they’re only listening to a certain version of the narrative that is skewed — often referred to as, “living in a bubble.” They don’t necessarily have information presented to them in an unbiased way in order to make decisions based on logic.
We see with political discussions that neighbors and friends can look at the same set of facts and come to viewpoints that are polar opposites of each other. We just had a presidential election, and with how divided the country was, this couldn’t have been more clear. Similarly, this happens all the time in divorce. People look at the exact same fact set and arrive at completely different conclusions. It’s only by understanding this inherent reality that attorneys can offer a truly holistic representation for their divorcing clients. For more information on telling the story of your divorce, backing it up with unbiased, concrete facts, and interlacing it with recent case law trends — contact me.
Cheryl Stein, Esq.
The Law and Mediation Offices of Cheryl Stein
745 Fifth Avenue, Suite 500
New York, NY 10151
Phone: (646) 884-2324