Advice from a Judge (Part 2)

A Family Court Judge talks about effective preparation for court -- and how to achieve results in court by utilizing all available resources.

By Hon. Kathleen M. McCarthy

Recently, I presided over a trial where the sole issue for my consideration was spousal support. Under Michigan law, which I imagine is similar to case law in other states, I am obligated to consider and announce findings of fact and conclusions of law on the following factors:

1. the past relations and conduct of the parties,
2. the length of the marriage,
3. the abilities of the parties to work,
4. the source and amount of property awarded to the parties,
5. the parties' ages,
6. the abilities of the parties to pay support,
7. the present situation of the parties,
8. the needs of the parties,
9. the parties' health,
10. the prior standard of living of the parties and whether either is responsible for the support of others,
11. contributions of the parties to the joint estate, and
12. general principles of equity.

Additionally, some courts may consider a party's fault in causing the divorce.

I had requested trial briefs analyzing the parties' respective financial and legal positions relative to the 12 factors. What I received were perfunctory briefs that outlined basic facts and provided minimal financial information. The proofs at trial were equally empty and perfunctory. I was left, as always, to make my decision upon what I had before me. What was lacking was a great deal of "non-legal" information I would have liked to have had from other disciplines. In this matter, testimony from a CDP would have helped me to make a more sound and expert decision. Also, it would have enlightened and educated the parties as to the long-term impact of their financial futures.

Flash back to my law-school days. What did my trial practice professor overlook? That spoon-feeding should include more than just meat and potatoes. Trial lawyers should not overlook "dessert": spoon-feeding your judge with non-traditional offerings -such as financial planning, economic assumptions, tax consequences, and actuarial projections -- will surely sweeten the result.

Going to court: a judge's tips

1. Be clear as to your objectives. Present your issues in court with a proposed resolution. Use your own creativity instead of leaving that solely to the judge. Bring in all documents that support the facts and your theory.
2. Be civil and professional. Lawyers and litigants should address their remarks to the court -- not to each other -- and confine these remarks to the issues at hand. Engaging in personal attacks on opposing counsel and litigants is unprofessional and discouraged.
3. Respect everybody's time. Punctuality is important, and courtesy is important, too. If you're going to be late, advise opposing counsel and the court.
4. Dress appropriately. Your attire and person should be neat, clean, and professional: as though you're going for a job interview. This isn't a Saturday night date or an afternoon at the gym. You are in a court room, and your appearance should demonstrate respect.
5. Know the Rules of Procedure. Local or general court rules are the oil that keeps the engine running. Procedural faux pas get in the way of efficient administration of justice.