A few big things trump a lot of small things

Posted Wednesday, August 28th, 2019 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

At the very beginning of any new domestic client relationship the attorney and client need to discuss the client’s goal, discuss the law related to each of these goals, and discuss the evidence that might be marshaled to achieve each goal.

For example, if a client has the goal of getting custody of the children, we might discuss the law on custody and then the client would explain the reasons he or she should get custody. Some of the reasons the client might provide might be legally insignificant–for example, “I am the mother” (assuming that fact isn’t contested) is insignificant if the client is trying to get custody from the father but much more significant if the client is trying to get custody from a third party.

Part of the discussion should weed out the insignificant and irrelevant factors and decide what facts to focus on. For each goal, the attorney and client should try to narrow the factors they are attempting to prove to achieve that goal to a few big things. Trying to achieve goals based upon the hope of proving a lot of small things is a high risk strategy that rarely succeeds.

As an example, a client trying to change custody might argue custody should change because the children are doing very poorly in school, the custodial parent isn’t addressing the educational issues, and this client is positioned to do so. This “basis” to change custody relies upon proving three facts and, when proven, has a good track record of leading to a change of custody. However the client who comes in wanting to change custody due to a litany of small complaints–the other parent is sometimes behind on getting the children’s dental appointments; the other parent doesn’t always promptly respond to that client’s questions about the children; the other parent has the child in a car seat designed for a slightly older child–presents the attorney with a much harder task.

Proving a lot of small things is typically not as successful as proving a few big things. This is especially true at temporary hearings. Often I will encounter affidavits for temporary hearings in which one party makes a litany of small complaints about the other party with no general theme and no analysis of how these many small things should compel the court to rule in that party’s favor. In contrast, affidavits that stick to a few big themes are much more persuasive.

Moreover, and literally from a mathematical standpoint, each additional fact one must prove to achieve one’s goal makes achieving that goal exponentially harder. If one has an 80% chance of convincing the court on each contested fact, one has about a 50% chance of going three-for-three on convincing the court of three contested facts, but only about a 25% chance of going six-for-six–and less than a 7% chance of going twelve-for-twelve.

This doesn’t mean that one shouldn’t try to introduce all non-cumulative evidence that substantially supports a client’s position on a contested issue. However, one should develop simple themes on why the client should prevail on each contested issue and develop and highlight evidence that supports that theme.

Death from a thousand paper cuts isn’t nearly as efficient as a shotgun blast to the head.

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