In preparing recently for a trial, I was reminded of something that I learned early in my practice – whatever you do – try to make sure that it fits within the theme of the case and don’t say something to get something minor now, that will ultimately hinder you getting something major at the end of a case. Put another way, always look at the big picture.
As a young associate, the senior partner used to have me abstract the entire file when preparing for a trial. I could spend days summarizing all of the pleadings, Orders, Case Information Statements, discovery responses, depositions and motions. In the first case that I ever trial prepped for him, there were probably 20 motions – literally a motion almost every month. I learned a lot reviewing the wife’s many Certifications in that case. In fact, it was the content of those Certifications that allowed her credibility to be eviscerated at trial but more importantly, it hindered or negated many of the positions that she took at trial.
While sometimes your theory of the case changes during the case as divorce and custody cases can sometimes be fluid, factually, and/or the facts turn out not to be what you were originally told they would be. That said, most often, your goals for resolution and theory of the case don’t change all that dramatically. As such, you need to think long and hard about saying something just to get something now, when those words could come back to bite you on a much more critical issue, at trial.
I guess that there could be two schools of thought here. One is the one that I am talking about above. The other, which I don’t suscribe too generally, is since only 1% of cases get tried, say what you want now because it may never come back to bite you. I think that that is unwise because these things can also hurt you with experts and can hurt you at settlement if you take a contrary position to one that you took under penalty of perjury. I am not talking about lying – I am talking about saying something that need not be said.
Again, never forget the end game. Never forget the big picture.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.