Acknowledging the obvious

Posted Sunday, February 7th, 2016 by Gregory Forman
Filed under Attorney-Client Relations, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

In responding to discovery or pleadings, some of the responses, if accurate, will bolster the other party’s case.  Clients, even (especially) sophisticated clients, often balk at issuing a formal response that, although accurate, bolsters the other party’s case. Sometimes these clients will want to issue an evasive response. Occasionally they will want to issue an inaccurate response. Counseled to issue an accurate response that will not help their case, they might ask, “whose side are you working for?”

Despite this displeasure, there are benefits in acknowledging the obvious.  Most importantly, it prevents one’s client from having his or her credibility attacked for denying the obvious. At trial a party who denies the obvious should expect to be cross-examined on such responses. Further, forcing the other side to incur attorney’s fees to prove facts that should have been uncontroverted, increases both the likelihood the other party will be awarded fees and the amount of fees that party is likely to be awarded.

It never helps one’s custody case to acknowledge that the other parent was the “primary caretaker.” However, when one parent worked 60+ hour work weeks and the other parent stayed home to raise the children, it is the rare case where the working parent can honestly deny that allegation. Where one spouse to a 20+ year marriage earns 25% of what the other spouse earns, the high-income spouse is foolish to deny the other spouse is entitled to permanent periodic alimony.  It never helps one’s divorce case to admit adultery.  Yet denying obvious adultery has no benefit and can greatly harm a case.

Admitting the obvious is rarely fatal to a claim.  Admitting the other parent was the primary caretaker doesn’t prevent the working parent from seeking substantial time with the children, or even primary custody in the right circumstances. Admitting the other spouse is entitled to alimony doesn’t prevent the high-income spouse from trying to negotiate a limited, definite spousal support obligation or from advocating less alimony than the other spouse requests (although, in a long-term marriage, that spouse probably shouldn’t advocate temporary alimony at trial).  Admitting adultery doesn’t prevent that spouse from seeking anything other than alimony.  Such responses merely acknowledge obvious facts and enable the answering party to maintain credibility.

Meanwhile denying obvious facts create numerous problems at trial.  First, little time is typically spent at trial establishing acknowledgd facts.  When such issues are contested, significant time is invested in establishing these facts, which tends to highlight them.  Further, when one party contests obvious facts, it damages that party’s credibility not only on that fact but potentially on all facts.  A Latin phrase most law students learn is “falsus in uno, falsus in omnibus,” which translates, “false in one, false in all.” The concept is that a witness who willfully testifies falsely in one matter is not credible on any matter.  Or, as I have written previously, Better to be an adulterer than an adulterer and a liar.

There are almost no family court cases in which all the favorable facts are on one party’s side. Acknowledging these unfavorable facts isn’t a strategic mistake. It merely enables the answering party to better dispute facts that are legitimately in dispute, and prevents that party from an undefendable credibility challenge at trial.

One thought on Acknowledging the obvious

  1. Good post Greg. I tell my clients and young lawyers “A lawyer’s job is to first determine the truth and then show the trier of the facts why the truth favors the lawyer’s client. My favorite example is a case about twenty-seven years ago when the plaintiff’s lawyer alleged my client was an habitual drunk. I admitted the allegation, had my Alcoholics Anonymous sponsor appointed as her guardian ad litem, got her into A.A., and sought alimony. The trial judge awarded alimony.

    When my client admits an unfavorable fact the other side probably could not have proved, I argue to the judge it support my client’s credibility because he or she could have avoided the truth but instead told the truth.

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