How your court experience differs for different types of law, and how to deal with it

April 24, 2013

CourtroomAll month, we’ve been dealing with preparing to go to court: what to do beforehand and how to deal with those you’ll interact with while you’re there.

However, “going to court” is not a universally defined experience; it can vary based on the appearance’s type, the attitudes of the parties involved, or even on the preferences of the presiding judge.

One of the most reliable indicators of how your court appearance will play out is the kind of law to which your case belongs.

For example, a court appearance for a criminal case will be much different than one for a probate matter.

Although there’s a lot of practical knowledge that can only be gained through experience, there are some basic principles that can be learned without stepping foot into a courtroom (and here they are):

Criminal

This is one area where procedure and practice is highly important.

Unfortunately, as a newer defense attorney, you’re at a distinct disadvantage against the prosecutor, since he or she will likely have mountains of experience in the courtroom, and will be intimately familiar with the procedure, the law, and the judges.

The best advice as a newer attorney in this field is to shadow an experienced defense attorney for several cases to get the lay of the land.

However, even if you sit through a trial or two with such an attorney, there’s still a steep (and often painful) learning curve in this field, since “common practice” can vary between jurisdictions within the same state.

If you can’t shadow an experienced attorney, read as many practice guides as you can (although, as I’ve learned from experience, they can only be so helpful since procedure can vary so much).

Although it may be unavoidable in some situations to publicly make a rookie mistake, as long as you know the law as well as you can, the worst consequences you’ll have to deal with is embarrassment.

Civil

This is a very broad blanket of cases, but under this category, I am referring to cases in which one party is suing another for something like a breach of contract or a personal injury.

Civil cases such as these are going to be much more about the numbers than the latter ones I’ll get into (which are also technically “civil” in nature).  As such, these cases should theoretically involve a lot more negotiating.

In a civil case, if you’re not negotiating (as the Internet meme goes), you’re doing it wrong.

Yes, it’s possible that your case may be one of the rare ones in which settlement is impossible.  More likely, though, is that one or both of the parties is being unreasonable, or one or both of the attorneys doesn’t know what he or she is doing.

Important point: judges don’t like it when parties refuse to settle.

There’s more than enough literature available on how to negotiate in these situations, but I don’t have the kind of space to get into that now.  Instead, my advice is to just try to reach a settlement if it’s possible.

Family

Here’s another area of law where settlement is supremely important.  In this category, though, I have more specific advice.

I have come to realize that the majority of practicing in family law is effective client control.  This is the area of law in which the parties get the most emotional and irrational.  They are emotional about the case itself, about any children involved, and about the other party.

You must be aware of this and try as best you can to pull your client from the emotional quicksand to do what’s best for the case.

A point to remember: make sure that your client isn’t (or at least doesn’t appear to be) trying to keep the children away from the other party.  As much as most judges hate making decisions in these cases, nothing will make them feel obligated to act like one parent being obstructive to the other parent’s having time with the children.

Another point to remember: don’t make it about the child support.  In most states, once a parent hits around 50% parenting time, his or her child support obligation significantly decreases.  If it looks like your client is only going after more time with the kids to reduce the support obligation, you can bet that the other side – and the judge – will pick up on that.

Family law is a unique area of law: in trying to get the best result for your client, you may unintentionally sabotage your case through appearing to advance his or her interests at the expense of the children’s.

As such, my advice is to identify the best outcome for the children – because that is how the court will be viewing the case.  The more closely you can align your client’s interests with those of the children, the more successful you’ll be in court.

Child protection

If you’re unlucky enough to find yourself in this court, make sure that you have a thick skin.  You are going to see some very emotionally trying cases here.

More importantly, though, to be successful in representing your client, there is a hard realization to make: the county holds all of the cards.

What does this mean?  It means that you have to get your client to be as cooperative as possible with the county and any case plan that is laid out.  It means that one false step can ruin your entire case.

However, you must also be aware of the implications of having your client agree to any kind of plea bargain.  If he or she has any kind of licensure from the state for working with children, he or she may lose it.

This doesn’t mean that you have to switch from negotiation to belligerence.  You may yet still be able to come to an arrangement.

Again, though, the county holds all of the cards.  If you feel as though trial is the only option, you must be aware that the county wins far more often than not.

Conclusion

The overall theme you may have noticed with all of these areas is that, when you go to court, you should think first about negotiating instead of fighting.

True, you must always be prepared to fight.  Hopefully, it should always be the last resort.