The Most Important Thing You Must Do to Maximize Your Odds of Winning on Appeal — Before You’ve Even Started Trial.
You’re expecting “bring a court reporter.” Or maybe “preserve your objection.”
Nope. Don’t get me wrong; both are critical. With no transcript or no timely objection, an appellate court can’t reverse most errors even if it wants to. Which it won’t.
But there’s something more important.
Remember your judge is trying to Do the Right Thing.
Really. Brilliant or not. Happily married, miserably divorced, or somewhere in between. Take any possible combination of race, gender, orientation, politics, religion, experience, intelligence, temperament, wisdom, humor, law school, astrological sign, or shoe size. No matter what, your judge is trying to Do the Right Thing.
Don’t be distracted because the judge may not grasp the intricacies of your case like you. You’re handling dozens of cases at a time. Your judge may have over a thousand.
And your judge knows the awesome responsibility accompanying every ruling she imposes on the parties.
If a judge misreads the parents and makes a bad ruling on parental responsibility or timesharing, the impact on the children could be devastating. And long lasting, possibly echoing down in their future relationships and affecting their own kids.
An unduly harsh ruling can leave a party feeling that there is no justice, and no incentive to behave, igniting a decade of litigation warfare where the main casualties will be the children.
If the judge gets it wrong on a complex issue such as business valuation or income determination for self-employed spouses, then she can cripple a company. This doesn’t just hurt the owner. It imperils the children and the other spouse relying on support and could ripple out even farther, putting employees out of work and hurting their families.
Your judge never forgets the burden riding on every ruling that she makes.
So don’t you forget it either. You’re an advocate for your client and the family, but remember always that your judge is not an adversary. Don’t treat her like one. Do all you can to help your fellow professional understand why the result you seek is for the best. Not only for your client, but for the children and both parents.
The judge means to do equity, so help her do just that.
If you’re not already doing this, try it. You’ll be surprised how your interactions and results change when the judge understands you’re not grasping at legal grounds to justify a lop-sided, scorched earth result in your client’s favor.
And should your case go to appeal, your approach will only help your client. Maybe you don’t believe the judge is trying to Do the Right Thing. But the district court does. And even on a cold transcript, there’s a dramatic difference in tone between force and persuasion.
BECKET, the 1964 Paramount Pictures classic starring the greatest actor of all time, Richard Burton, has this brilliant exchange:
Becket: “I've just ridden from the town. … The French bishop will deliver the keys of the city to the king. …”
Lord: “No fighting? What are we here for?”
Becket: “To secure King Henry's possessions in France. You have three more towns to recapture.”
Lord: “I'd rather sack the town and slaughter the lot.”
Becket: “Yes, and have a dead city. No, I want to give the king living cities ….”
If they were lawyers, which one persuades?
Your judge is trying to Do the Right Thing. She knows that many years after the divorce is final, those children will be graduating from high school and college or getting married. And the last thing she wants is for that child, on the happiest day of his life, thinking, “Oh, no – Mom and Dad have to be in the same room again.”
While the divorce is finishing, co-parenting is beginning. Try to give the judge the means to ensure a living co-parenting relationship, not a dead one. Help your judge Do the Right Thing. Your transcripts will read better to the district court judges and law clerk perusing them in six months.
And you’ll get fewer rulings where your client wants to appeal in the first place.