Strategic Moves: Anatomy of a Divorce Trial, Part II • Your Divorce Case
Trial Strategy: Making Your Case in Divorce Court
In this second installment of their three-part series on divorce trials, Tampa divorce attorney Seth Nelson and Pete Wright dive deeper into trial strategy and momentum. Part of their season-long "Your Divorce Case" conversation, this episode explores how attorneys navigate the complex dynamics of presenting evidence, examining witnesses, and adapting their approach as trials unfold. Building on last week's overview of courtroom basics, they now focus on the strategic elements that can make or break a case.
Seth shares detailed insights about trial preparation, witness examination, and the intricate dance between attorneys, judges, and clients during proceedings. Through real-world examples and candid discussion, Seth and Pete break down how success is measured in divorce court, why "winning" isn't always what it seems, and how attorneys must constantly adjust their strategy as new evidence emerges. Their conversation reveals the complex reality behind courtroom proceedings, including how judges signal their thinking and why settlement offers often play a crucial role in defining success.
Questions we answer in this episode:
What happens when you finally take the witness stand?
How do attorneys measure success in divorce court?
Why don't clients really get their "day in court"?
Key Takeaways:
Trial momentum can shift dramatically between days
Your attorney should be completely transparent about how the case is progressing
The best outcome often beats the last settlement offer, not necessarily "wins" everything
Whether you're headed to trial or trying to decide if you should settle, this episode offers crucial insights into how divorce trials really work. Seth and Pete's practical discussion helps demystify the process while providing valuable perspective on what constitutes success in divorce court.
Links & Notes
Got a question you want to ask on the show? Click here!
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Pete Wright:
Welcome to How To Split A Toaster, a divorce podcast about saving your relationships from TruStoryFM.
In court, they would bicker and feud, each claiming the other so rude. The judge rubbed his head, and finally said, "I now pronounce both of you screwed."
Seth Nelson:
Welcome to the show, everyone. I'm Seth Nelson, and as always, I'm here with my good friend Pete Wright.
I am not even going to try to compete with that one this morning, this afternoon, this evening, whenever you might be listening. Well-done, Pete. I think you're a poet, and you didn't even know it.
Pete Wright:
I think the jury's out, let's say.
Seth Nelson:
My dad would teach me that. He would say, "You're a poet, and you didn't even know it, but your feet sure showed it, because they're long fellows." Oh, yeah.
Pete Wright:
Wow.
Seth Nelson:
It's a lot.
Pete Wright:
That's a lot. There's a lot to unpack there.
Seth Nelson:
[inaudible 00:01:13].
Pete Wright:
We'll do that in our bonus episode, Poetry Today.
Can we review before we dig into Trial Part Two? What did we talk about last week? Do you remember?
Seth Nelson:
Yeah. So, this is when you walk into court on day two, and the judge says, "Are there any housekeeping issues?" That's how we start, housekeeping issues.
Pete Wright:
That's how we start, and then you gave me an anatomy of the courtroom. We learned our rights from our lefts, from the perspective of the judge, Judge Direction.
Seth Nelson:
That's right.
Pete Wright:
And we talked about a lot of logistics, the housekeeping, the stuff you don't see on TV, but today we're digging into the momentum of litigation.
Seth Nelson:
Yes. Yes.
Pete Wright:
How would you like to start?
Seth Nelson:
So, this is not what happens on TV, and this has happened in courtrooms that I have been in, after the opening statements, you're the petitioner, you go first, you give your opening, the respondent goes next, they give their opening, and then after that, the judge, if you're technically going by the rules, will look at me and say, "Mr. Nelson, you're case in chief. Call your first witness."
I've literally had a judge say, off-the-record, after openings, "Counsel, in chambers," and brought us into chambers, and, basically, said to one side, or the other, "Yeah. That's not happening today."
Pete Wright:
What? What do you mean, "That's not happening"? What's not happening? The judge is just done with you?
Seth Nelson:
The judge is saying, "Your argument is not going to fly. That dog don't hunt. That is not going to work."
Pete Wright:
Wow.
Seth Nelson:
"Not in this courtroom."
Pete Wright:
The judge can do that?
Seth Nelson:
Yeah, because what happened in this case, and this is public record, because we're in an open courtroom, it was a post-judgment case, and in Florida, the law is very clear that you have to have what's called a substantial change in circumstance that is material.
And that's had to happen from the last order regarding a parenting plan. It was dealing with kid stuff.
And in the opening, that was actually done by my law partner Kristen Scully. She laid out to the court that the majority, if not everything they're talking about, are all items that happened prior to the last order.
And if it's before, not after ... Now this is substantive law, but we're in court. That's where the law gets played out, it's not going to be admitted into evidence, because it's not relevant, because it's happened before.
Pete Wright:
Wow.
Seth Nelson:
It's not a change.
Pete Wright:
Each one of these orders that you're referring to becomes the next starting point.
Seth Nelson:
That's right. Think of it as wiping the slate clean, and now you start from here, what, if anything, has changed? Okay. So, went into the chambers, basically, the judge said to the other side, "Yeah. That's not happening," and they advocated for their client, "Well, Judge, we do have some things that happened afterwards, and we're asking for X, Y, and Z," and I won't get into the specifics.
I went back to my client and said, "Look, here's the thing, I believe the judge believes us that there's a substantial change in circumstance. So, we should win, but I don't think that's necessarily how he's going to rule. I think he's going to listen to the whole trial, and then he's going to find a reason to do a substantial change in circumstance. And I think he's going to find a reason to then give them part of what they want, and give you what you want, because you've got some issues that I think he could find against you. Let's settle this case."
And so, we, ultimately, settled the case. And then it's like, "Well, now we got to deal with fees," and I tell my client, "They're asking for X in fees. It's going to cost you Y number of dollars, which is less than X for me to try the case today, and potentially have an appeal and all this other stuff."
And we literally settled that case not on the courthouse steps in the hall of the courtroom. Actually some of it was settled in the courtroom, because the judge left, so, we could discuss the settlement.
So, when I say anything can happen in court, I mean anything can happen in court.
Pete Wright:
Yeah. And what sort of an irregularity is that when you say, "We're just going to do opening statements, and then everything is going to be shot to hell, because the judge is going to throw that kind of a wrench at us"?
Seth Nelson:
You have to always be prepared for that.
Pete Wright:
Okay.
Seth Nelson:
No. Does that happen often? Absolutely not, but when you have a very good judge on the bench that's been doing this for a very long time, and knows the law and hears it, and looks at the other side, and says, "Is what they just said true?"
Why is that court going to waste judicial economy of a full day trial when everybody agrees? Right?
Pete Wright:
Right.
Seth Nelson:
And there's some people would say, "Well, why can't you deal with that earlier before?" There's a lot of reasons that I could go into, which would be two other parts of trial, just on this one issue.
So, be ready for anything.
Pete Wright:
One of the points that we ended on last week was a question that I've had based on things that you've said to me in the past, which is you, the client, never get your day in court.
And I would love to start the process of what the trial is beyond opening statements with that premise.
Seth Nelson:
Sure. So, you do opening statements. Let's just back up. The client doesn't do the opening statement. The lawyer does. I'm speaking on behalf of my client. That's not you talking, that's not your day in court, that's you listening to me have your day in court. Right? "It's my day."
"Now Mr. Nelson, call your first witness." That client does not make the decision who I call first. That client does not make the decision who I call second. That client does not make the decisions what questions I ask.
So, think about this. You want your day in court-
Pete Wright:
So far, by what you've asked, we're oh for three.
Seth Nelson:
Right. Now I'm going to put the client on the stand. You're on the stand, Pete, it's now your time to talk. Right? And I'm a really bad lawyer, and I think you're just going ... Like, you insist on me calling you, I'm telling you it's a bad idea, you are not going to be a good witness, and you say, "I'm going to fire you if you don't call me as a witness."
I said, "Okay. I'll call you," and here I go. Are you ready?
Pete Wright:
Sure.
Seth Nelson:
"Please state your name for the record, sir."
Pete Wright:
Pete.
Seth Nelson:
"Your honor, no further questions."
Pete Wright:
Okay.
Seth Nelson:
Okay.
Pete Wright:
Okay.
Seth Nelson:
That is an extreme example for the podcast, for the toaster.
Pete Wright:
Yeah.
Seth Nelson:
Right?
Pete Wright:
Yeah.
Seth Nelson:
But I control the questions, and when I tell the judge I'm done, I'm done. And if that client goes, "Well, judge, can I say something?" No, sir. You weren't asked a question.
Pete Wright:
Speak when spoken to pretty much.
Seth Nelson:
Answer the question.
Pete Wright:
Yeah. Okay. So, I think that's a really interesting thing to think about strategy, and I think to put in the heads of our listeners who are thinking, "Wait a minute. I want to go to court and yell, and scream."
Like, "It feels like I deserve to yell and scream. I was put through hell in this marriage and I want to get it off my chest."
Seth Nelson:
And in the legal process, not just the marriage-
Pete Wright:
And in the legal process. Right. Right. And so, what we want to reinforce is court, trial, is not that place.
Seth Nelson:
No. What happens at trial is you get asked questions, and you have to answer the questions. Now the other thing that happens is you have to sit there with a straight face, and not respond and not react, and not make faces and not blurt stuff out, when the other people on the stand, when they're being asked questions, are lying about you, are calling you names, are saying that you stole, or hid money, are saying that you neglected, abused, did not show up for swim lessons, did not go to your kids' graduation from kindergarten, that you failed to show up for your time-sharing, that you haven't paid back medical expenses, and on, and on, and on.
And that you had an affair, and that you said bad things about mom in front of the children, that you always cook them mac and cheese and that's it for dinner, and no vegetables, and you are an alcoholic, and you show up drunk, and you do cocaine, and you go on, and on, and on.
Pete Wright:
Sounds like a great setup.
Seth Nelson:
There's no joke here.
Pete Wright:
I know. That's the joke. I can't believe it.
Seth Nelson:
That's what you have to listen to. I know. I know. That's the point.
Pete Wright:
Yeah.
Seth Nelson:
And I counsel my clients very clearly on how you dress in court, how you respond, how you sit there, how you don't do it, because the judge is watching everything, and when they're trying to make a case that you've got a short temper, and you blurt shit out in court-
Pete Wright:
Right. Don't make that case for them.
Seth Nelson:
Yeah. They're like, "Judge, exhibit A."
Pete Wright:
Yeah.
Seth Nelson:
So, court is no fun. Also, we will be speaking English in court unless there's someone who does not speak English, which then there'll be a translator, which really messes with the flow, but you will not understand what is happening, even though, we are speaking English.
So, Pete-
Pete Wright:
You're going to do that thing where you speak English, but words actually mean the opposite of what they mean.
Seth Nelson:
Well, that is similar to what I was thinking, but how much do you know about the rules of the game of rugby?
Pete Wright:
Oh, Seth, have we met? I have very soft hands.
Seth Nelson:
Yes. Exactly. That's my point.
Pete Wright:
Okay.
Seth Nelson:
If you and I are watching a rugby game together, because you are not a rugby connoisseur, you did not play rugby growing up, you didn't play in college, you know there's a game called rugby.
Pete Wright:
I thought it was my friend's dog.
Seth Nelson:
Okay.
Pete Wright:
That's how far we are.
Seth Nelson:
Well, that's not fetch. It's rugby.
Pete Wright:
Okay.
Seth Nelson:
So, when I watch the rugby game, because I played in college, and then in my twenties after college, I am going to see more, understand more, than you do, not because I'm smarter, though I am, not because-
Pete Wright:
Ouch. Ouch.
Seth Nelson:
Dude, I gave you a pregnant pause. I gave you the pause to let you chime in that you were. I set that up for you actually.
Pete Wright:
[inaudible 00:12:26]. I know.
Seth Nelson:
You didn't take it. So, I took it.
Pete Wright:
Nope.
Seth Nelson:
Okay. Not because I'm smarter, not because I have any special skills. I've just seen it and played it. And so, I understand it.
You haven't been in the courtroom to see it a thousand times like I have to understand the law and how it applies in rugby. What are the rules? How does it apply to it? The ref blows the whistle. There was a violation.
Like, I understand all that in the courtroom, I understand it all in watching rugby, you would not. Even though, you're a very smart guy.
Okay. All right. See, we made up now.
Pete Wright:
A little bit. Okay.
Seth Nelson:
So, that's the other problem, and things happen very fast in court, because remember we only have so much time. So, you've got to get in and get out with your testimony and your questions, and while all this is happening, I'm going to ask a question.
Let's say, you're on the stand, it's your day, I'm asking you a question, and I say ... And we're on direct examination, I call you as my witness, I'm asking, and I say, "Isn't it true that you paid $500 in child support in August?"
"Objection, leading." That's what the other side says.
"Well, I just asked you a question." And so, now, "Objection, leading," and I've taught you if you hear the word objection, you stop talking."
Pete Wright:
Okay.
Seth Nelson:
And the judge says, "Sustained."
Pete Wright:
Okay.
Seth Nelson:
And now what do you do?
Pete Wright:
I don't know, because, "Sustained," I think is one of those words that means the opposite of what I think it means.
Seth Nelson:
Right. So, if it means sustained, it means the judge agreed with their objection. I have to ask a new question.
Pete Wright:
And the alternative is, "Overruled."
Seth Nelson:
Very good.
Pete Wright:
Which means the judge did not agree with their question, and-
Seth Nelson:
Which means you have to answer the question.
Pete Wright:
... I could answer. So, overruled is good, sustained is bad.
Seth Nelson:
If I'm asking you questions, the answer is, "Yes." If I'm the one objecting, I want to hear the word, "Sustained." Right?
So, it depends on what side of the coin you're on on that, Pete.
Pete Wright:
At what point did they decide to make up words for these things rather than just good and bad?
Seth Nelson:
Yeah. I think it was 12:36 is when they started doing that. Okay? Not sure. It might have been 37.
Pete Wright:
Okay. Fair.
Seth Nelson:
So, with that in mind you're on the stand, you're nervous about your money, your kids, making a good impression. We're always nervous when we try to make a good impression. I get nervous every time I go home at night. I still want to make a good impression of my wife. "Am I going to do it this time? Who knows?"
Pete Wright:
Those nerves are probably good for you.
Seth Nelson:
Yeah. So, but you're nervous, you're in court, you're worried about your kid, you're stressed, your heart rate is racing, even though, we've prepared you, it's something new. Right?
And there's an objection, the judge says something, and you don't remember. "It's sustained. Do I answer? Do I not answer? What do I do?" And sometimes they blurt out the answer, and then the judge goes, "No. Don't answer it," and you're like, "Oh, I'm sorry."
So, here's the rule. The only time you're ever allowed to ask a question in court is when there's an objection, and the judge rules and you're not sure, and you can look at the judge and say, "I'm sorry. Am I supposed to answer?" Right?
Pete Wright:
Okay.
Seth Nelson:
Okay. Or you sit there quietly and your lawyer should do a good job, if you sit there quietly, because you're not sure, your lawyer will ask you a new question, and will say, "You may answer the question."
Pete Wright:
Okay.
Seth Nelson:
Okay? So, look for those cues. All right? And the lawyer's not being deceitful, or trying to wink, wink, nudge, nudge, kick you under the table, answer this way.
It's just the process. It's stressful.
Pete Wright:
It's stressful, and it gets to my next question, which is if I'm sitting there next to you, and I'm hearing you speak in code about my case, the thing that I'm going to be thinking about and wondering is, "Are things going my way? Are we winning? Are we losing? How do we know?"
And I'd like to know from your perspective how you track that? Like, how you think about the momentum of a particular proceeding.
Seth Nelson:
Brilliant question. Witness by witness, question by question. I just had a trial. It was two and a half days. At the end of day one, we came back flying high. We thought we did a great job. We thought that the opposing party did a poor job on the stand. Like, killed his credibility, we had an expert that said things that were favorable to us, that we did not expect him to say. Okay? We're like, "This is going great."
At the end of day two, when the expert was finished, the judge asked the ... The judge can ask questions at any time he, or she wants. The judge asked questions of the expert, and I was like, "We're in trouble."
Pete Wright:
Well, how do you know that?
Seth Nelson:
Because when the judge is asking questions, or having a dialog, which might be, "Well, I'm trying to explain my question," and the judge can do that, you'll get a sense of what the judge is thinking, or what the judge is trying to get more answers to.
Those questions on what he was trying to get the answers to were not favorable to our case. It was just ... I'm not going to get into the facts of the case, because the court hasn't ruled on this case yet, but we left there thinking, "This was great" on day one, and on day two, we thought, "This is really bad."
And so, what people don't understand about a trial, especially, if it's more than one day, what do you think I do after trial on day one before 9 A.M. on day two?
Pete Wright:
Well, I imagine you go home to your condo with young and vibrant aides, and you order pizza and drink Corona just like Tom Cruise did in A Few Good Men, and plan for day two.
Seth Nelson:
Yeah. And see, that's very good, Pete, because you can't handle the truth. Okay?
The truth is none of that happens except for we plan for day two, and you have to adjust from day one.
Pete Wright:
And strategy can wholly change between those-
Seth Nelson:
Absolutely. Absolutely. We're not going to call this witness, we're running out of time, they're not going to help us. We're going to call this witness, but pare it back. Oh, we had extra questions for this witness, we're going to ask those now, because they didn't come out through the other witness we thought that they might come out. And because the way that witness was handled, we decided it's best to get it through somebody else. Right?
So, there's all this strategy happening.
Pete Wright:
And you, if I'm your client, you've been prepping me all along. So, I should not be surprised, though, maybe disappointed, or fearful that you're pivoting between day one and two. That should not generally come as a surprise to me.
Seth Nelson:
That's right, but day two did not go well, which means we had to pivot on day three, but also part of pivoting on day three for us in this case wasn't really a pivot.
We were, like, gutted, and I said, "You know what? This case starts tomorrow," and that's actually I think a line from that same movie. Right?
Pete Wright:
Yeah. That's pretty good.
Seth Nelson:
Yeah. And because at that point in the trial, the judge had not heard from my client. And our client in our view was our star witness.
So, the reason I go through that, and then at the end of day three, we felt great and we felt great based upon our client was an excellent witness, one of the best witnesses I had ever seen, and my closing argument I thought changed the judge's mind. I think the judge might have ruled against us despite how well we did.
But I thought the judge gave us another bite of the ... Or said, "I want to see written closing arguments," and I think I might have changed the judge's mind, not to rule in our favor, but not to rule against us that day.
And now we have submitted after the trial, the judge goes, "Go write what you believe the final judgment should be and cite to all the evidence."
Pete Wright:
Okay. That sounds like a law school assignment.
Seth Nelson:
Yeah. And it's a two and a half day transcript with hundreds of exhibits, and you're going to have to go through and say, "This factor, look at this witness what they said, what this witness said, what this witness contradicted himself, what this witness said. Did they contradict themselves?"
Look at exhibit number 57, page four, paragraph three, line two, boom-
Pete Wright:
Which is, essentially, what you did to build the case in the first place.
Seth Nelson:
Yeah, but when you have to write it out after it's been tried, and write a final judgment, it's ... Because you have to cite to the transcript, and to the page, and the line of the transcript, which you don't have before, because you don't know what page and line it's going to be, or what people are necessarily going to say despite you know what they should have said based on their previous depositions.
So, it's a lot of work. So, we did that, the other side did theirs.
Pete Wright:
Sidebar, what am I doing as your client while you're taking two and a half days to write this final judgment?
Seth Nelson:
Oh, it took longer than two and a half days. Well, depending on the client. Some clients will be like, "Just write it and then show it to me." Some clients want to read the transcript, and be heavily involved and be like, "You guys do your lawyer shit, but I just want to ask questions. Is this in? Is this in? If not, why?" It's your final judgment. Right? And you're allowed to do that. Okay?
Sometimes we're like, "Hey. We're going through the transcript, but go through the transcript and I want you to jot down X, Y, and Z for us that you might know better, even though, it's in the transcript," and trust me, we're double-checking and triple-checking it. Okay?
So, it depends on how involved you want to be. And so, we've submitted all that to the court now, and we're waiting for the judge to make his final decision.
And I can be absolutely wrong on everything I just told you. Maybe we had a terrible day on day one, and a great day on day two, and an okay day on day three.
Like, my perception can be wrong. I don't think it is, and my law partner didn't think it was, and my client didn't think it was, but I haven't gotten a ruling yet. I don't know if we were successful. Good lawyers on both sides. Good arguments. You never know.
Pete Wright:
How long does it take for the judge, typically, given how busy they are to get back to you after this amount of work has gone into preparing these arguments?
Seth Nelson:
Oh, it could take a month, or two.
Pete Wright:
Okay.
Seth Nelson:
Yeah.
Pete Wright:
So, now I'm just ... Be patient?
Seth Nelson:
Waiting.
Pete Wright:
Yeah.
Seth Nelson:
Waiting. Yeah. Terrible. It's horrible. Okay?
So, that just shows you to your question about momentum.
Pete Wright:
Yes.
Seth Nelson:
How does it change? And it changed by what the judge was asking at the end, or momentum changes, because day one, the witness said things we didn't expect that were in our favor, and we felt great, but day two, the same witness changed their tune, and the judge picked up on that, and does that help, or hurt? And was there an explanation for why it might have been nuanced a little different?
So, you're just flowing with it, and really what is the tell-tale sign is when the judge tells you what they're thinking at the time. "I haven't made any rulings, but I'm a little confused by this."
So, if the judge is asking questions, it's insight to what they're thinking, and whenever a judge asks a question of a client, or of a witness, I think it's glorious. People hate it. I love it.
I love it, because it gives me an insight to what the judge is thinking. If he does that on day one, or she does it on day two, I can adjust for day three.
If the judge says nothing the whole trial, and just makes the ruling at the end, case is over.
Pete Wright:
Right.
Seth Nelson:
So, whenever a judge asks you a question, it's a positive thing. They're struggling with something and they're looking for an answer.
Pete Wright:
Just how much of your witness to witness, moment to moment strategy is built on your relationship with opposing counsel and the judge? I know we've had a judge on this show. We know that they are human beings. You have a unique relationship with all of them. How much are you trying to clock their psychological state in order to make decisions on what to do next?
Seth Nelson:
I always prepare for court the same way, because I never know whom my judge will be. And they're like, "What do you mean? You're in front of this judge. It's set for trial." I'm like, "Yeah. You're right. Until that judge's child gets sick that morning, and they call up and say, "I've got a trial" to the chief judge, "Can you get someone to cover for me?"
And a new judge walks in. And they'll say, "Well, I don't look like Judge Pete, because I'm not. But I am Judge Whatever, and I'm trying your case today. I've read the pleadings, I've read the motions. Mr. Nelson, would you like to do opening statements?" And off you go.
Pete Wright:
Yeah.
Seth Nelson:
Off you go. So, yes. Will I be crafting my arguments based upon what I believe the law is? 100%. Will I be crafting it on what practicalities the law has on this case and the effects? Absolutely. Will I maybe weigh some of those more than the others depending on the case? Depending on if I've been in front of this judge 20 times before and I know how they think about an issue?
And, ultimately, I've been in front of a judge where I knew exactly how he was going to rule, because I was in front of him four other times on both sides of the issue, and he ruled the same way every single time, sometimes for me and sometimes against me, because he was consistent. Right?
And I would have to say, "Your honor, my argument in this case is," and he's looking at me, and I'm looking at him, and we all know what's about to go down, and my client knows what's about to go down, because I've told my client. Right? But this is good faith argument, blah, blah, blah, deny. Right?
So, yeah. You, certainly, are going to try to tailor it, if you know how they feel about certain issues, not personally, professionally, by the law. This is what they think, because you know that issue.
Pete Wright:
Right. Right. If anything, you're prepared on arguments where you need to spend your time, and where you probably don't, because-
Seth Nelson:
That's right.
Pete Wright:
... you already know how that's going to turn out.
Seth Nelson:
That's right. Great question.
Pete Wright:
Yesterday, or last week, I should say, you told us about opening statements. You're not arguing the law, specifically, in your opening statement. By the time you get to your closing statement, is it the same thing, or, at this point, are you now deep in the trenches of the law, and you're citing cases, and you're doing your thing? Or is it just the same as opening statements?
Seth Nelson:
We are deep in the trenches of the law.
Pete Wright:
Okay.
Seth Nelson:
Okay? And remember whenever you are in court, you know this, Pete, and our listeners know this, you always have to think about your audience. You always have to think about your audience when you write a letter, when we're on the Toaster, when you're talking to your kids and trying to get them to do something, they're your audience. Right? You deal with them differently than your boss. Right?
In court, the audience is the judge, but also the record. The cold, hard transcript. I'm talking to the record.
So, by way of example, in closing, instead of saying, "Your honor, we all know the factors, and here's why my client should win," and I ramble off a bunch of facts that I think the evidence showed, when you say in court, "Well, we all know the factors," the record doesn't know the factors. There's an assumption there.
So, I have to say, "Your honor, pursuant to 61.13, subsection 3A, I believe the evidence showed," blah, blah, blah.
Pete Wright:
Right. So, at this point, you're referencing the factor.
Seth Nelson:
I am referencing the factor on the record. Right?
And so, it's tedious, because it's A through T.
Pete Wright:
Yeah.
Seth Nelson:
So, there are things that I will do at the beginning of my opening, which I will repeat in my closing. My opening might say something like, "Your honor, even though, we don't discuss the law, or the case law in our openings, as an aide to the court, I will let you know that I do not believe there will be any evidence on chapter 61, subsection three," and then I would look just to make sure I have my exact ones correct. And I might say, "We're not going to talk about F, G, I, or L."
Pete Wright:
Okay. Right. And this is where we get into you're speaking code, and it doesn't matter to me as the person sitting next to you.
Seth Nelson:
Right. And you're going to be looking at me like, "What?" And I'll say, "Judge, there'll be no evidence on those factors."
Pete Wright:
Yeah. "Don't even worry about it."
Seth Nelson:
You will know this, because I would have told you, we've already prepared you for your testimony, and we're going to go through the factors, and we're not asking you any questions on these. Why not?
And I'm just making up the letters and now I'm making up the examples, "Thankfully, Judge, there's no evidence and there's no domestic violence in this case. That's one of the factors. We will not be discussing it."
The very next one is, "Did anyone lie, or submit false evidence about domestic violence?" Which is also moot, because there's no domestic violence. No evidence on that.
"Judge, the kid is six years old. There will be no evidence that this child is of sufficient age of maturity to testify in court. Thankfully, Judge, I don't believe there's going to be any evidence that either one of these parties has mentioned this case to the child, and they both have shielded them from litigation."
Pete Wright:
There's another thing we don't have to talk about.
Seth Nelson:
There might be two questions, "Did you ever talk to your child about this?" "No." "Did she ever talk about it?" "No." "Are you worried about this factor, sir?" "No." "Ma'am, are you worried about this factor?" "No." "We're done with that, Judge." "Okay."
So, that's actually a good thing, if you don't have to put on evidence for every factor, because, one, it's less things for the judge to decide, there's less to prep, there's less money you have to spend, and, also, you can focus on what's really important. Deep dives are better than just thin layers. Deep dives are better than thin layers, but don't go too deep, and beat that dead horse. Right? Mixing analogies there.
So, closing, "Judge, as I said in my opening, there was no issues on these factors, but here's what we saw on A. Here's what we saw on B, and, Judge, I know they testified to X, Y, and Z facts under these factors A, B, and C, but under the law you can't consider that. Here's why. Here's the case. Refer to my memorandum of law that I've already prepared and submitted."
Or something happens in trial, and you've got to know the law that you did not prep for the court, because you didn't see it coming, and then on your feet, in closing, "Your honor, as you're well-aware, you can't do that, because of X."
And you know the law. You might not cite the case right away, you might not be Smith v. Jones 1992. Right? But you know what it stands for, and it might be basic propositions of law that you're like, "Judge, you've got to think about this now." Right?
So, that's where you weave in the law, and have that ready to go the best you can.
Pete Wright:
Trial ends. You end your two and a half days, whatever it is. How do you measure success in the trial? How are you going to be communicating with me knowing that we now have a wait ahead of us for the judge to get back to us?
Seth Nelson:
Well, if the judge didn't rule right away, and we're waiting and he tells us to do the final judgments, or the judge goes, "I'm going to take it under advisement, and in two weeks, I'm going to call you back, and I'm going to have a ruling hearing where no one is making argument, I'm just telling you what I'm ruling," I'm going to just tell you, "Here's what went well, here's the points we didn't do well in."
I think that my witnesses, my clients, are ... I'm a tough grader. They're usually harder on themselves in grading how they did as a witness than I am on them, because I've prepped them, and prepared, and like, "Nope. Did you answer the question that time, or did you go beyond the question? Did you answer it in the least number of words as possible?" Right?
Pete Wright:
They generally know immediately what they-
Seth Nelson:
Not only that. They will tell me afterwards, "I was on the stand answering that question thinking, "Seth is not going to like this answer, but I just couldn't control myself." Like, they're literally telling you that, and I'm like, "Shut the fuck up."
Pete Wright:
Yeah. That's all you had to do is you had one job. So, we know that that's work that comes. So, you get a ruling. What is the next thing that has to happen? Like, you get a ruling. How do you finish the case?
Seth Nelson:
So, the judge rules in your favor, and the judge says, "Mr. Nelson, I want you to prepare the proposed final judgment," and you draft it, you send it to the other lawyer, they disagree, you submit competing orders, and the judge does their job, and rules, and writes it down.
That's the amazing thing about our legal system, as flawed as it is, and there's a lot of flaws, if the judges are doing their job with the resources they have and the time that they have, there's a lot of caveats there, all the decisions are made right there on paper.
They're not hidden. Even the appellate, it's all made on paper. You get to read it, though. Sometimes it might just say, "Denied" without explanation, but for the most part in these cases in [inaudible 00:35:44] family law, there's a lot of factors, and the appellate court says you have to make findings, which means you have to tell me about the factors. It's all written there, and you know the weaknesses of your case going in, and you know how to prepare for it.
So, for the client, losing sucks, but winning isn't that much better, and here's why. Here's why-
Pete Wright:
You're going to make that tagline for the firm.
Seth Nelson:
I know-
Pete Wright:
Losing sucks-
Seth Nelson:
Losing sucks, but winning-
Pete Wright:
... winning isn't great either.
Seth Nelson:
... [inaudible 00:36:15]. But here's why, in family law, it's not usually a win, or a loss. You win some issues, you lose some issues. You don't win as big as on one, but you don't lose as bad on the other.
And sometimes you lose them all, and it sucks, but then you get to tell yourself, "I might have lost, but I was honest, I did everything I could. I'm not even saying the judge made the wrong decision. I understand why the judge made the decision, because my lawyer told me, "This could be an outcome," so you understand it, but it could have gone either way. I was telling you, "We've got an uphill battle here. We got a shot, but it's not a good one."
So, understanding why the judge ruled, to me, at some levels is so important. Where I get frustrated is when a judge makes a mistake, and just out of left field. And I don't particularly ... Even if I "win" for a client, and air quotes on win, and I don't know why the judge did it, it doesn't explain it. I'm like, "Okay." Like, "My client's happy, but from my personal satisfaction, and being a lawyer and wanting to understand and learn and always improve, that's hard to swallow. It's really hard to swallow when you lose and it comes out of left field." Okay?
I'm going to tell you something else about this, which is really interesting, because people say, "Well, come on, Seth, you're competitive. You want to win." I'm like, "Okay. I want to win. Let's say that. I'm going to court. I'm going to advocate for my client. Yes. Would I like to win?"
So, how do I define winning as a lawyer? It's very simple. Does the ruling that we get beat the last offer they gave me?
Pete Wright:
Okay.
Seth Nelson:
If we beat the offer, we won. Right? If we got the same offer, well, that was a big fucking waste of time, which I'm saying facetiously, because people want to go for it. Right? If I'm just talking outcomes, though, like, forget about the expense and the time and the stress-
Pete Wright:
Because we're going to court to try to beat the offer. That's the goal. Right?
Seth Nelson:
That's the goal.
Pete Wright:
If we liked the offer, we wouldn't go to court. Okay.
Seth Nelson:
That's right.
Pete Wright:
That sets the table for me.
Seth Nelson:
Keep it in mind when ... And that's why I tell people, especially, the other side, make my job hard. If there's a pie, and we're dividing it up, and my best day in court is half, why don't you offer me 42%?
Pete Wright:
Okay.
Seth Nelson:
Because right now you're offering me zero. My worst day in court is zero. Why would I not try to do better? If my best day in court is 50-50, if I can get from zero to 50, offer me 35%.
Pete Wright:
Just get the game going. Right? Get the conversation going.
Seth Nelson:
Well, even if you say, "35%, take it or leave it, now I have to tell my client, "Look, I actually think 35% is a potential outcome in court. It might be on the low end, but it's a potential outcome, and the other high-end is only another 15%. Right? I'm at 50% now. Do we really want to go fight for that? I think we earned it. I think you deserve it. I think the court should rule in our favor. But there's a 20% chance we only get this 35% of the pie. Do we want to risk it and spend the money?"
So, that's the analysis, but when you come in and tell me zero? "Okay, let's go, tee it up."
Pete Wright:
We're going to court.
Seth Nelson:
Right? But what happens is maybe on one issue, I'm like, "Yeah. You're offering me something that I think is actually worse than my worst day in court."
So, the lawyers don't always agree where the worst and best days are. So, I'm going to go to court on that, but what happens if they're offering me that, but something else? They're offering me something better than my best day in court on another issue in the case. My client's got a decision to make. Maybe they're like, "I don't care about that, what they're offering me. I care about where they're saying zero."
So, that's one way to look at it, and I had a case once where ... And I really don't care about this stuff, and a friend of mine said, "Man, there's this lawyer that is going around town saying how she really crushed you in court." And I said, "Really? I was in the same courtroom, and I heard the same ruling." And I said, "Okay. I'll bite. What did she say?"
He said, "Yeah. Seth only got 30% of what he was asking for." And I was like, "I actually agree with that," and my friend was like, "So, she crushed you? You only got 30%?" I said, "No. First off, I should have only gotten 10%." Like-
Pete Wright:
Yeah.
Seth Nelson:
... I beat the last offer they gave me, and I got more than I expected to.
Pete Wright:
Perspective is everything. Right?
Seth Nelson:
Right. And I know I'm now talking in terms of wins and losses, but that's not what we really do, and what I counsel my younger partners, and lawyers, and associates, how I gauge whether we've won, or loss has nothing to do with the outcome on what the judge did. I lay my head on the pillow at night saying, "Did I do my best work?" And if I've done my best work, and the judge ruled against us, fine.
But I'm a harsh critic on myself, and I think that's why we improve, and that's what you want I think out of lawyers, "Don't tell me about a win. Tell me about a loss and how you handled it. What did you learn from your last trial? What mistake did you make?"
Because if there's one other lawyer telling you that they walk out of that courtroom not thinking, "I should have asked this. I should have said that. I should have objected here. I should have let that slide. I should have made a different closing. I could have tweaked my opening."
If your lawyer is not that self-critical, find a different lawyer.
Pete Wright:
Find a different lawyer. Question?
Seth Nelson:
Yeah.
Pete Wright:
We're at this point, because the couple couldn't come to terms in mediation, or earlier. So, is there a mindset you take if you feel you're losing, knowing everything they went through, and said, and heard in the mediation, do you prep your client for that?
Is there something you say like, "If you hear the judge say this, it's probably over for us," or as their lawyer do you maintain positivity?
Seth Nelson:
Oh, I am brutally honest. Okay. Will I be positive? Yeah. There's always good stuff that happens, but if it's bad stuff, I am not going to blow smoke up your ass. I am not going to make you think it's all roses and rainbows. No. It's my job to tell you whether I think it's going poorly, or well, and not, and how it plays in. Okay?
At the end, the telltale sign, if the judge is going to say, "Okay. I'm going to make my ruling and I want you guys to propose final judgements," or maybe it's just a hearing, not just a trial, and they say, "Mr. Nelson, I want you to prepare the order."
The work goes to the victor, but let me tell you, I've had days where the judge goes, "Mr. Nelson, I want you to prepare the order." And then the judge started saying the order, and I was losing. The judge got to the end, and I said, "Your honor, let me be clear, you just asked me to draft the proposed order, and you ruled against my positions on every one? I think my obviously lawyered counsel should be drafting that order. You're making me do the work. Come on here."
Pete Wright:
Yeah. If you lose on almost every decision, you've earned a pass-
Seth Nelson:
Yeah.
Pete Wright:
... on the work. That's [inaudible 00:44:45].
Seth Nelson:
And quite frankly, you don't want me writing the order, because if I write a sloppy order, and the other side agrees to it, and the judge is busy and signs off, okay-
Pete Wright:
You're giving him excuses to come back to court.
Seth Nelson:
I've just set up an appeal for my client, because I lost and I wrote a bad order.
Now I don't do that purposely. I take what the judge says, but sometimes they say stuff, and you're like, "Well, what did you mean later?" And you don't have a ... Like, you do the best you can, and the judge is going to review it. I'm not trying to trick anyone here. It's all on paper. Right? So, that's a telltale sign usually. There's always exception, damn lawyers.
Now the other thing, sometimes judges will tell you, "I haven't made any rulings yet, but here's what I don't really understand." Like, okay. How the judge reacts, the judge is human too. You'll be looking, and the judge will be like, "All right. Let's move it along."
"Got it. Yup. Mr. Nelson, I got that point," or the other side, "I got that point," or ... Yeah. I've been in court making legal arguments where the judge goes, "Mr. Nelson, that dog don't hunt." Like, you know to move on. Right? Which is fine. Why are you going to waste your time if that's the loser? Keep going.
So, it's a really, really, really great question, but the bottom line is, no, honesty with your client.
Pete Wright:
This has been great. We've got our little two part here on trial. Have we covered trial? Is there more we need to talk about, or are we putting a button on this?
Seth Nelson:
Yeah. I think that we got one more show about this.
Pete Wright:
Oh, no. I won't stand it. Andy's going to be so mad.
Seth Nelson:
It might not be the full 40 minutes.
Pete Wright:
Okay.
Seth Nelson:
But I really think what we need to cover is how we handle ourselves in the courtroom, and what you can do as a client during the day to help your lawyer in the case. So, that's what we're going to work on.
Pete Wright:
There we go. That'll be trial three coming soon to a podcast very near you. Thank you, Seth. Thank you very much. Thank you, everybody, for joining us, for asking questions. Don't forget, head over to www.HowToSplitAToaster.com, click the submit a question button. We'd love to hear your questions. We'll answer them on the show.
In just a couple of weeks, we've got our next listener questions episode coming for you. So, get those questions in now. We'll answer them very, very soon.
On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you next time right here on How To Split A Toaster, a divorce podcast about saving your relationships.
Outro:
How To Split A Toaster is part of the TruStoryFM Podcast Network produced by Andy Nelson, music by T.Bless & The Professionals, and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law with offices in Tampa, Florida.
While we may be discussing family law topics, How To Split A Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction.
Pete Wright is not an attorney, or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
