Attitude is (Almost) Everything

The title may seem like a no brainer. You’re in front of a judge; some of the most important things in your world are at stake; why wouldn’t you use any advantage you can to get to where you need to be?

But when I say appearance, I mean everything. When you walk into a courtroom for any family law matter, you are under a microscope. Everything about you, your life, your family, is being analyzed.

There are many reasons for this, but to summarize it all into one word, it would be discretion. Family law matters are not as tightly bound by the black letter of the law, as something like criminal law would be. In criminal law, generally you either did it, or you didn’t do it. There are some in-betweens, i.e. self-defense, but more often than not, the trial is about whether or not someone did the thing.

In family law however, your lawyer needs to prove things like your ability to coparent; your ability to support yourself after a marriage; the preferences of the child (more often than not, without any firsthand input from the child), and finally, the infamous “other factors[1],” whatever that actually means. Most factors considered in these matters are incredibly subjective, and afford the judge a vast breadth of discretion to determine the outcome of a family law case.

The discretionary nature of a family law case is why, from the moment you walk into the court room, everything about you is analyzed. How you dress, how you talk, your body language, everything. It is part of your lawyer’s job to prepare you for such a rigorous evaluation.

That’s not to say an adept liar will win because they can cry one cue. However, showing respect to the court, the attorneys, and most importantly your spouse/coparent, will come off as much more endearing and sincere to a judge than the party that decided it a good idea to call their spouse a slur while under oath.

Jokes aside, your attitude plays a large role in relation to these unspoken and subjective considerations, and there’s no single “right” attitude to have. The court understands this is an emotional time in your life. The court has seen hundreds if not thousands of parties in the exact same position as you. They have seen people handle things well, and the results of that; They have seen people handle things poorly, and the consequences of that. But while there is no “right” attitude to have, there is most certainly a “wrong” attitude.

The wrong attitude, without question is obstinance; stubbornness in the face of reason for the alternative; entitlement to an unwavering opinion. This mindset in a family law case will, at best, force you into a lengthy expensive trial that may not go the way you’d like it to go. At worst, the court will question, chastise, and even disregard your opinion or desire.

One of the most common mistakes I find during trial comes from a common question lawyers ask in divorce or custody trials: “Can you describe the good qualities of your [spouse/co-parent]?” Nine times out of ten, this question is a win-win for both parties. A judge hears what an you party thinks is good about the opposing party, and you have the opportunity to show a sense of sincerity for this person you married or had a child with. Too often I see parties struggle with saying anything positive about their spouse/coparent, and that question goes from a win-win for both parties, to a lose-lose at best. At worst you hand the other side a win, and lose credibility with the court.

This is not to say you must say good things about an abusive person. There are other, more important, considerations outside of your attitude and demeanor in court. Even the most obstinate party can be successful in a pyrrhic sense. But in a case that is going to determine your future, and/or the future of your children, any advantage you can give yourself, is an advantage worth having.[2] If that advantage comes with the mere cost of cordiality, then you simply have nothing to lose, and everything to gain.

[1] The Case Taylor v. Taylor, 60 Md. App. 268 (1984), dictates the factors considered for child custody, and actually says “other factors.”

[2] This should go without saying, but keep your pursuit of advantage within the bounds of the law.