Chapter 3 Court

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So … before I go back to more cases, or how I grew up to become a family law attorney, I thought I’d do a quick segue to the elephant in every room when it comes to any law related writing: Court.

Mention that you’re an attorney, particularly a family law attorney, to anyone and you can expect one of two responses. Either, “Oh, really, hey, let me ask you [intensely personal legal issue goes here]”; or, “Wow, court must be intense! Got any cool stories?”

[My advice to new lawyers, by the way – if you’re at the proverbial cocktail party and the same person asks both questions . . . suddenly notice an old friend across the room, feign illness, run. What’s coming next, you really want nothing to do with].

I should state this up front: I’m good in court. I’m comfortable in court.

Court is, however, in my opinion the last option for most family law matters, the place very – very – few clients should ever want to go. For one simple reason – once you walk into a court room, the outcome is out of your hands. It has shifted to a stranger (or worse, strangers) and an element of randomness enters the picture.

Over the last few years I’ve written about court – not cases – a lot. These are the pieces I think do the best job of conveying my philosophy about taking a case to court.

Sometimes, of course, court cannot be avoided – spouses are too far apart for any hope at an agreement, there are serious issues that absolutely necessitate judicial intervention, to name two reasons to visit the court of last resort.

For all the other cases, however . . . well, just a word to the wise, after all my firm’s motto is “We stop smart people from screwing up their divorces.”

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“I want my day in court.”

I get this from clients I have just started representing on an almost daily basis. It isn’t necessarily stated exactly like that, but the tone and inference is clear – ‘the judge will get me, she’ll know how wronged I’ve been … I’ll be vindicated (or similar verb) . . .’. You get the picture.

When they finish, I wait a short moment before I paraphrase The Princess Bride’s Inigo Montoya: “About going to court – ‘I do not think it means what you think it means’.”

Clients, I have found over the years, think court and conjure up clean, quick images from Law & Order, or any dozen or so other TV shows where everything is solved in a nice, tidy forty-seven minutes.

TV doesn’t show the hours and hours of preparation for trial, depositions, paperwork, interviews, motions, briefs. Hours of work that must be paid for. It doesn’t show the stress of that preparation, the stress of moving through the trial itself, the continuances, delays, surprises, conflicts.

It certainly doesn’t show the aftermath, the scars, hard feelings, lasting enmity.

There aren’t any shows about mediation. It’s what I do and I’ll be the first to admit I’d be bored stiff watching it.

That’s the point. Trials are inherently dramatic, mediation is not.

Trials are in your face, conflict ridden, win or lose, propositions. Mediation is working it out.

Trials are about the single-minded quest for validation, or, way too often, revenge.

As to that, Inigo Montoya is even more to the point, “There’s not a lot of money in revenge.”

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Going to court requires immense preparation. Every time. Anything less is like the coach blowing off the week before the Super Bowl because he’s coached other games.

It is daunting; it is expensive.

There’s another element to a court appearance that bears careful consideration – as I always explain to clients. Yes, you will get a chance to tell your side of the story. Yes, the judge will listen. Yes, I will ask all the questions we need so that you can get your side of the story out in a comprehensive, coherent manner.

You could be on the stand for hours. The other side will grill you, but I’ll help get you through it. Then, we’ll parade your witnesses up, one after the other, to really flesh out and back up your story.

What could go wrong?

The answer to that is Harvey Haddix.

What does a decent left-handed starting pitcher from the ‘50s and ‘60s have to do with court?

Everything.

On May 26, 1959 Harvey Haddix started for the Pittsburgh Pirates against the defending National League Champion Milwaukee Braves. Harvey threw nine perfect innings. No runs, no hits, no errors. Unfortunately, the score at the end of nine was 0-0.

Harvey pitched a perfect tenth. Then a perfect eleventh. And a perfect twelfth. The Pirates had twelve hits but could never manage to score.

In the bottom of the 12^th, Harvey lost the perfect game when he – probably very sensibly – walked Hank Aaron. His next pitch to Joe Adcock was deposited over the right-centerfield wall for a game winning . . . double. Adcock was so excited he sprinted around the bases and passed Aaron, thereby insuring that the final score was 1-0.

Harvey Haddix did what no one had ever done or has done since – he was perfect through twelve innings. Harvey’s teammates did, well, nothing. Harvey got the loss.

What of it? Simple – if you insist on going to court understand that you, your witnesses, and me have to be perfect. For that one day, five, six hours or more, we all have to be perfect. And there are always – always – factors that are out of our control even if we are perfect.

Everyone involved must give the performance of a lifetime in court, a Lady Gaga at the Superbowl level performance.

And, like poor Harvey Haddix, you still never know, perfection is not always rewarded.

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Tom Holland wrote a series of books about the Roman Empire. They are fascinating and highly entertaining, Holland has a wicked sense of humor (and irony) and doesn’t spare any of his ‘characters’ – it really makes for a different history read.

Most people know our system of law descends directly from the Romans. Holland gives a great description of the way Roman law worked in the first book of his series, Rubicon. He gives several great descriptions as he relays – blow by blow – some of the more famous trials of Roman history before the Republic ended after the rise of Julius Caesar.

Some of it is instantly recognizable to anyone who has ever spent more than a few minutes in a modern-day courtroom. Judge, jury, prosecutor, defense attorney, spectators, arcane rules of procedure rigorously applied.

The Romans had all that, in spades. Drop any one of my colleagues or clients into a Roman court in 25 BC and, outside the fact the trial was probably being held outdoors, they’d be comfortable in the setting, know where to sit and what to do. The Latin might be a problem, but even then, more than a few words would make perfect sense.

The juries then were larger – much larger – twenty-four to thirty-six citizens, sometimes more. Spectators could number in the thousands, think civil lawsuits held in the Dean Smith Center.

There were magistrates who specialized in the intricacies of the law, but they rarely presided over trials. The judges tended to be citizens trusted to be impartial, with the temperaments of NBA referees.

Lawyers could be anyone. Well, any male citizen of the Republic. Prosecutors and defense attorneys had day jobs as merchants, farmers, up and coming politicians, senators.

An aggrieved party could ask anyone to act as a prosecutor for them, the accused could ask anyone to defend him. Even then, it was generally accepted that only idiots acted as their own attorneys.

Family matters, by the way, didn’t go to court, divorces in ancient Rome were granted when the husband (and sometimes the wife or her family) said the marriage was over.

“Hi, honey, we’re divorced, catch you later,” was legally sufficient.

Trials in Rome weren’t necessarily only contests between the plaintiff and defendant. They could take on an entirely different importance when the prosecutor and defense attorney had their own political agendas to pursue far beyond whatever the case was about.

Some defense attorneys, men like Cicero, defended cases solely to defeat the prosecutor, usually another politician. Those matters became a contest between lawyers with scarcely a thought given to why they were opposing one another in the first place. Jurors could easily get sucked into the contest of personalities.

Jury decisions were by majority opinion. Bribery was frowned on, but it happened with little to no repercussions beyond public opinion, a wildcard that could never be discounted. Spectators could get wild; their actions could most certainly sway juries concerned about getting home in one piece.

The similarities with our system are obvious, the differences are stark.

The thing that struck me reading this, though, was how so – so – many factors beyond the case at hand and the evidence both sides present can and did affect cases.

Personalities get in the way.

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I mentioned surprises a few pages ago – as in how incredibly unpleasant it is when a surprise pops up just before or during a trial. Take a surprise and a series of ‘coin flip’ decisions by the presiding judge and you have my nightmare scenario.

Or, Netflix’s big hit The Staircase.

Like me, many of you may remember the case, having – in many cases unwillingly, it was that pervasive – seen it covered every day on local TV here in North Carolina.

It was impossible to miss the arrest, trial and the subsequent appeal(s) in 2015, thirteen years after it all started.

On the off chance you didn’t live in North Carolina when it went down, or were in a coma, here’s a recap:

A writer, Michael Peterson, called 911, said he found his wife, Kathleen, lying at the bottom of a staircase in their mansion in Forest Hills, screamed that she was bleeding profusely.

She died before the ambulance arrived. He told the paramedics and police he found her at the foot of the stairs; the police claimed he bludgeoned her to death.

He was arrested, charged with murder, hired an all-star defense team, went to trial, was convicted, appealed eight years later, won the appeal, was released from prison, cut a deal with the prosecutor, stayed home for good.

The series is thirteen episodes long so, yes, there’s a lot more to it. A French film crew started following everyone involved in the case – on both sides – very early on; the coverage was extensive, award winning, and almost surreal in its depth.

If you binged it on Netflix, or remember it live, you probably have an opinion, perhaps even a strong one, concerning Michael’s guilt or lack thereof.

That’s great, but not why I’m writing this.

This is about how pieces of The Staircase perfectly illustrate many of my feelings about going to court. This was a murder case, so obviously, aside a plea deal, it was always headed for court, that takes nothing away from its instructional value.

Spoilers ahead, maybe.

Surprising your attorney with a nugget of information they really should have known the day you hired them is never a good thing. In fact, surprises are bad after the first consultation; really bad just before depositions; terrible during a deposition; beyond horrific on the eve of trial.

Peterson did it to his legal team … twice. After a few months of investigation his lawyers were shocked to discover – from a local TV station’s evening news – that their client had a series of one-night stands and casual sexual encounters with men for years that his wife may or may not have known about.

No matter, the existence of any number of emails were motive for the prosecution, another thing to explain for the defense, bad.

On the eve of trial, Peterman’s attorneys were watching the same local news station when a special news bulletin informed them that years earlier, when Peterson was living in Germany, he found his next-door neighbor dead … at the bottom of her staircase.

The German authorities called the death ‘natural’ but talk about bad optics.

Peterson’s failure to disclose this little nugget was devastating; it came out of nowhere just when the defense thought they had everything set for their case.

Think ten minutes before the Super Bowl and Tom Brady tears a hamstring in the tunnel on the way out for introductions.

By the way, at the time Peterson had spent about $350,000 on his defense, his attorneys had to immediately send their investigator to Germany; it was not cheap. When lawyers are forced to scramble, the meter pretty much runs like it did on the guy in the taxi in Airplane!

Another one of my motifs over the years: a lot of uncertainty accompanies every court appearance. An attorney can only control so much.

Judge’s decisions, moods, likes, dislikes, and every other thing that makes them as human off the bench as the rest of us are not necessarily ‘predictable.’

In the last episode of the series, the filmmakers sat down with the judge. He comes across, as he had throughout the trial and appeal, as a decent guy, smart, sense of humor, who had clearly had his fill of the case over 13 years.

He very candidly said he wasn’t sure now – today – he’d make the same rulings against Peterson that he made in the original trial. These were make or break rulings on matters of admissibility that probably swung the case against Peterson.

The judge had been thinking about his decisions for years, questioned them now, rued about how close they were.

Which, of course, is always one of my major concerns – the wild card court variable of humans making decisions in the moment that have earth shattering effects for years.

What do I take out of The Staircase? Easy, tell your attorney everything, upfront; surprises in court cases are only fun in novels and movies; resolve as much as you can, when you can, leaving as little as possible to a court hearing and …don’t go in the first place if you can reasonably avoid it.

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I just realized I used a ‘Super Bowl’ metaphor at least twice in this chapter. I was going to go back and change one of them when this thought hit me: ‘Leave it. Going to court over a family matter is your Super Bowl. Like the New York Jets, it’s also most likely your only appearance.’ [/et_pb_text][/et_pb_column]
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