HOW TO HELP YOUR LAWYER LOSE YOUR CASE

1. Do your best to alienate the children from the other parent.

It works - some of the time. And you're surely going to do such a good job that your case won't be among those thousands of cases in which the judge sees right through it and asks why the children are giving these stilted and unnatural answers. And after all, what judge could possibly disregard the best interests of the children by forcing them to live with a parent they hate?

2. Get your law from the internet.

Or from cocktail parties, or the Women's Center, or your friends at the gym ­p; or better yet, even from some 1983 book you found at the public library. Surely if your lawyer says it's not that way, he just hasn't heard the latest, and deserves not to be paid for presuming to practice law while uninformed. That article you read, in an on-line version of a Canadian newspaper, says you have an absolute right to divorce on grounds of three months' separation, and of course that means it's perfectly all right to shack up with your boy friend, and if the lawyer says otherwise, argue with him about it. He shouldn't be able to charge you for the time, because he's wrong. When the judge says that you're wrong, well then she must be wrong too.

The internet today is such a wonderful thing that it is invested with an aura of total authority, and an amazing number of clients cannot grasp the simple realization that if anybody can put anything on the internet, the internet can be wrong. And of course an astonishing number of clients cannot imagine that it makes any difference that something which is the law in Wisconsin or California or Hawaii or someplace ­p; like let's say divorce upon six months' separation, kids or no kids, for example ­p; would have to be the law here. They are used to reading national media (like the internet) that totally ignore state lines, and they treat the very concept of state cultures, state government and state law with contempt. They immediately become hostile when anything like a requirement of state law is even mentioned, and figure that if Virginia has a law that doesn't allow something, it will bloody well change when their case comes along, because it has to. After all, everyone knows that the law is made by judges deciding individual cases, and that lawyers make the law by convincing judges that "social reality" and the progress of mankind demand that the law be changed to reach the right result. There is very little appreciation of the fact that most judges will choose to follow the existing law rather than the client's feelings, or the latest poll or talk-show expert; and lawyers who try to tell clients otherwise are regarded as hopelessly old-fashioned, and therefore not worth listening to. This is all very nice, but in law practice it happens to be a disaster that is hurtling down the tracks toward the uncomprehending client.

3. Assume that the law has to make sense to you.

As in the above example, the lawyer who tells you to show up at your hearing on grounds of divorce with a witness to help prove that you are a Virginia resident and been separated from your wife for a year must be just making a big pedantic deal out of nothing to churn up his fees, because that doesn't make any sense. Everybody knows that you all have been separated for a year, and after all, you have your military orders to show that you were posted overseas and that Virginia was your Home of Record as far as the U.S. Navy is concerned. And if the judge or commissioner doesn't like it that you show up without a witness, well the overwhelming persuasive force of your winning personality will just blow all that dissatisfaction away. It couldn't possibly take two witnesses to prove a thing like that, because it just plain doesn't make sense.

The trouble with such reasoning is that the requirements of the law which don't make sense to you are still the law. You have to tell the legislature they have to change the law, and the law stays the law until they change it. There are some things which make sense for enormously complex reasons that a person has to go and spend three years in law school to understand. You didn't do that and that is why you pay a lawyer to use his or her training for your benefit and keep your case from being thrown out when the judge hears your reasoning set forth. There are also things which don't make sense to you but are necessary because of some things that were happening back at the time of the Anglo-Saxons, the Vikings, the Normans, Henry VIII, Senator Byrd and other uncool guys who made up our laws, and no one has changed them because no one has thought of a better rule that worked any more satisfactorily, and lo and behold they are still the law. And unfortunately the judge has to go by what the law says, not by what you say. And believe it or not, that old Virginia judge doesn't give a damn how they do it up in New York City, and when you are in his court you have to play by his rules or not at all.

4. Deal with your attorney very circumspectly on a need-to-know basis.

Be real stingy with information in dealing with your own attorney. Yes, you are in control of the information and information is power. Yes, you're showing that lawyer who's boss, all right. This will enable you to surprise your attorney at the last minute with documents he has never seen before. You can even surprise him with witnesses you want him to examine, completely unprepared, on your behalf at the trial.

But your attorney, who should begin preparing for the trial of your case the minute the retainer check clears the bank, cannot begin preparing a case based on your facts until he knows your facts.

5. Resist discovery until the last possible minute.

This keeps your attorney in the dark in order to keep the other side in the dark. This means that in the late stages of the game, close to the hearing date, when he or she should be preparing hard for trial, your lawyer is instead scrambling to comply with discovery demands. So when does the intelligent, deliberate, thoughtful trial preparation get done, if at all? Of course the answer is either not at all, or so late at night that it is ineffective. But that's the lawyer's fault, right? Everybody knows how to make chicken salad without chicken. Right? (Funny thing: exactly that same evidence your lawyer asked you to gather for purposes of discovery is the very evidence that your lawyer was going to use to prove your case, and not only is it impossible to comply with discovery rules without it, but it's impossible to be prepared for trial without it.)

6. Keep your lawyer on a tight budget.

Lawyers of course like to be known as big spenders and they are always willing to throw your money around, in the direction of various third-party suppliers such as investigators, court reporters, process servers, etc. As long as you are very stingy in doling out the necessary money to pay these people, all that wild spending on their services will be kept to a minimum. And if things aren't done right, or aren't done by the deadline, or at all, you can probably sue your lawyer for malpractice for not advancing you the funds from his own money.

Well in fact, though most clients don't seem to appreciate this, legal ethics codes prohibit lawyers from advancing their own funds to pay clients' costs to outside suppliers. This is because co-investing with a client gives the lawyers a stake in the results of the litigation, which they should not have. It would give them a motivation to do things, including the wrong things, for strictly financial reasons, and would totally blow their credibility. The fact is that you don't want a lawyer with no objectivity and no credibility: it isn't going to help you.

7. Think too much.

Come in a day or two before the trial and present your lawyer with a whole new set of thoughts to consider and problems to work on. Rethink your case. Get creative; ruminate, reflect, and cast about. Put your imagination to work and strategize all over the place. Brainstorm with your internet buddies, go to cocktail parties and pick up some new theories and some assignments for your lawyer to work on. Your lawyer is surely not doing anything during the last day or two before trial, and would welcome the diversion. Give him or her something to do. He has not been thinking enough about you throughout the history of this case, so give him something to think about.

8. Ditch that advice.

After paying a lot of money for a competent lawyer, after that lawyer instructs you in some detail about how to conduct yourself with the children and the other spouse, and how to act in court hearings, do exactly the opposite. That will demonstrate your independence and how worthless you think this lawyer is. It's a grand gesture, which somebody will remember for a long time.

9. Try something new.

To really demonstrate your independence and take control, change your story at the trial. That way the version of the facts that your lawyer spent many costly hours preparing to present to the trial judge in direct examination (and cross, and redirect, and argument to the judge) isn't presented at all. Your lawyer's questions do not match your testimony at all. Your lawyer looks like a fool, and you look like a lying SOB. Well, you sure showed that lawyer. Of course you have been resenting the lawyer for a long time now for charging all that money, and for presuming to instruct you and occasionally criticize you. But you had the last laugh this time - except for the laughter of the judge, of course, and the laughter of the opposing party, which is long and loud.

10. At the trial, get cute.

Always replace the hard, specific, colorful and detailed language in which you described the facts of your case to your lawyer with weary, stale, flat and unprofitable bureaucratic blatherskite and bafflegab when you get to trial.

Yes, you told a very affecting story in the lawyer's office, but now it's time to water it down some. That was among friends, but this is for strangers, in the courtroom, and this is Public Speaking. You want to be non-judgmental, and formal, and not offend anybody. The more you can sound like the Highway Commissioner discussing public transportation corridor alternatives to a room full of environmentalists and property owners, the better.

11. In fact, clam up.

Make your own lawyer drag every word out of you. Sure you look evasive, but you're in control. And there won't be any testimony from you on this record except what they really work hard for.
12. Talk too much.

Talk to your friends and relations, of course; talk to the in-laws. Why not? Above all, talk to your opposing spouse or ex-spouse. Even talk to the opposing counsel. And of course, since once again this amounts to taking control, and not letting your own lawyer have any of that information that you know is power, don't tell your own lawyer what you have said.

It is of course a universal maxim that in a case where there are children involved you have to talk to the other co-parent about matters concerning the care of the children, but nobody says you have to talk about the litigation. And in fact, you should not talk about the litigation. (Discovery obligations have to be complied with, but lawyers know exactly how to do it.) It is a big mistake to telegraph your lawyer's punches, threatening what your lawyer is going to do, as well as telling what you are going to say in the courtroom and what your witnesses are going to say.

Some clients, however, just can't resist engaging in predictive conversations which pretty much amount to "My lawyer can beat up your lawyer," and "My lawyer will show yours a thing or two." Most people should be able to see that this is bad strategy, but there continue to be clients who for some reason think it is good strategy.

Talking in the courtroom and in the court house hallways and out on the court house steps, out there around the Confederate Monument, etc., can be irresistible, but it is often a real bad idea. Clients never seem to think how the unwise things they say ­p; the snide, the sarcastic, the trashy things, the imprudent and ill-considered things they constantly say around the law clerks, court clerks, bailiffs, janitors and assorted court house hangers-on ­p; are bound to get back to the judge. In fact, they can't adhere to the rule the judge usually lays down for them when they leave the witness stand, "And do not discuss your testimony with anyone." And many lawyers seem to forget to instruct them that to most judges that seems to mean, "And do not discuss anyone's testimony with anyone, because it would nullify the Rule on Witnesses." The simple rule, which every client ought to memorize, is don't talk to anybody, except insofar as your lawyer says you can, about the case.

13. And if you can't talk, gesticulate.

While your lawyer is bending over backwards trying to look like the very picture of politeness and decorum, keeping all his or her scorn and righteous anger bottled up inside, you will have to be the one who takes on the burden of providing the necessary histrionics. The other side's witnesses of course will lie and say outrageous things, so you can shake your head, roll your eyes, gag and cough, hold your nose, strike your forehead, let your jaw drop, and make all those hand and arm gestures that Italian drivers love to use on each other. The judge never knew you had these hidden talents as a comic mime, and is sure to be impressed by it. And if the lawyer tries to tell you that judges absolutely hate that, what does she know? After all, isn't that how they do it on television?

14. Try to impress, and ingratiate yourself with, the opposing counsel.

Your wife's lawyer is a rather attractive young woman, so play along with her in the courtroom and give her the answer she wants to hear. Meantime, you'll probably be able to strike up a warm acquaintance with her and make a date a lot more interesting than a court date at the end of today's hearing. Why is your lawyer aghast at this behavior, and at all the unexpected testimony that is coming out of your mouth? Isn't this the way it happens on television?

15. Keep your lawyer busy in court.

In the courtroom, make sure your attorney doesn't miss anything, by keeping up a running commentary in that lawyer's nearest ear. Keep tugging the lawyer's sleeve and yammering in her ear in a constant, unbroken stream. And when the attorney tells you to shut up and write everything on a pad, cover that pad with rapid writing. Shove the sheets under the lawyer's nose at the rate of three per minute and expect counsel to read and digest it all, react to and converse with you about it, while everything else in the courtroom is going on.

The problem is that this is the best way to ensure that your attorney will miss something. Your lawyer is trying to listen to the judge and the other side and all the witnesses, find exhibits, think strategy, and talk, all at the same time. This takes tremendous ability, concentration, training and experience, and even the best of lawyers find it hard. You can indeed keep your lawyer from missing something important, but think twice before opening your mouth, because the effect will usually be the opposite.

Maybe there's nothing worse than a lawyer who won't listen, but to avoid losing your case, your lawyer has to listen to a lot more than you. And to think about your ultimate welfare and avoid losing your case, your lawyer has to think about a lot more than what you just said.

16. Defy the judge.

Go ahead. You're worth it. This will really show your children, your spouse, and all your friends who's in control here. If the lawyer tells you the judge does not like a certain type of behavior, and you might end up being held in contempt of court, don't take the lawyer's word for it: try it out. After all, being held in contempt doesn't really have anything to do with the merits of the case, and the judge will still decide the case your way because you are so right, and so superior to that creep on the other side.

17. Gotterdämmerung.

Or if you are gonna lose, lose big. Your lawyer hasn't handled your case right, or hasn't handled you right, and so he deserves to lose this case. And you are going to help him lose it, all you can. That will destroy his record and reputation, and give you a wonderful story to tell your support group ­p; and even the media, who are sure to be interested. So you quit cooperating at all in the preparation and trial of your case, or you get up and tell the whole courtroom what a bad spouse and parent you really are, and you remember to tell off the judge in the process.

Yes, it's dramatic. It is the Battle of Maldon; it's Brunnenburgh. Hell, it's Culloden. You'll surely go down in a terrific burst of fireworks. And as you fall on your sword, just to demonstrate what a poor lawyer you think you've got, it's kind of odd that your lawyer isn't falling on his.

Who knows what particular tiny screw they have got loose somewhere inside, but a shocking number of clients actually seem to think this way. Uh wait a minute. You mean for my lawyer to lose the case I have to lose the case? No. That just can't be true. The system is surely more just than that.

These people actually seem to think that the judge will somehow see how bad the lawyer is and save the client's hide by reaching out and taking the case away from him. Yes, surely on some planet in some parallel universe somewhere Hector didn't lose, Grant didn't take Richmond, and the Snopeses aren't running the South today. And if you can just wait around for the Second Coming when Barbarossa, King Arthur, and all that crowd have wakened and are back again, justice will be as sweet as revenge. Too bad your lawyer, the judge, and everyone else lives in the here and now.

18. Lighten up.

The problem with your lawyer is that he sees everything from within the legal system. You have to help that lawyer see it all within a larger global context. The system isn't what matters, after all, and judge's orders are important only because the lawyer, who has got such a narrow perspective, has been trained to think that they are. The order of some judge, in some one-horse backwater like Virginia, is of course of very little importance compared to your career track, your feelings, your children's feelings, your significant other's feelings and that other's keen wisdom in all matters. And those deadlines are important only because the lawyer says they are, and mean very little when compared to your convenience.

Of course stepping outside the legal system for a larger view is wonderful ­p; if you don't mind losing this case. Put that in perspective too while you're at it. This too shall pass, but you might go to jail before it does.