Allegations and records determine outcomes

Posted Sunday, November 12th, 2023 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I suspect the concurrence new Supreme Court Justice Ketanji Brown Jackson authored in the case of Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023) may become one of the most cited concurrences in history.   Her sentence, “Other cases presenting different allegations and different records may lead to different conclusions,” should be memorized and repeated to any client who seeks predictions about outcome or who is uncooperative in fact gathering and strategy development.

In the family court context, where I focus my practice, I find two insights in Jackson’s pithy observation.  The first is that one cannot reliably predict the results in one case from past experience in different cases.  The second is that “allegations” and “records” are outcome determinative. 

While prior cases may have many similarities to a current case, they also have so many differences that predicting the results of one case based upon the experience of a previous case involving different parties is foolishness or hubris (or both).  This does not stop clients from frequently asking me to predict their case results with some level of certainly based on my prior case experience.

Early in my career one attorney used to regularly publish an alimony decision table, listing published alimony opinions, tabulated by the various alimony factors and the amount of alimony ordered.   I assume this attorney found predictive value in the table and many of my colleagues did too.  I found the table silly.  There are thirteen statutory alimony factors.  Few of the published opinions discuss all thirteen factors.  Thus there is a lot of missing data.  Many of these factors are not subject to quantification, especially the final one, “such other factors the court considers relevant.”

If one had all the data for each case on each of the thirteen factors and if one could quantify each factor, then one could run a regression analysis to determine how the appellate courts value each factor.  However, there are so few data points (published alimony opinions) for so many factors (thirteen) that the noise would overwhelm the signal. Or, as Justice Jackson would note, other cases presenting different allegations and different records may lead to different conclusions.

Past experience in custody cases have similarly low predictive value.  In custody cases there are seventeen statutory factors, including “other factors as the court considers necessary.”  While I can explain how these factors affect a custody case, predicting at an initial consultation with exactitude the percentage likelihood that one party gets custody or how much visitation the non-custodial parent will get is foolishness.  Again, as Justice Jackson would note, other cases presenting different allegations and different records may lead to different conclusions.

The insight that “allegations” and “records” are outcome determinative should lead attorneys and clients to determine what allegations (i.e., factual assertions) and record (i.e., evidence) merit the effort and expense of pursuing.  Perhaps the most important task a family court attorney has is deciding what allegations and record the client should try to make.  The reason I am uncomfortable representing parents or spouses who will not assist in their own fact gathering is I have not lived my clients’ lives.  After I educate them about the allegations and records that are most likely to be highly consequential to their outcome, I have to rely on them to suggest the allegations that are worth pursuing and assist me in obtaining those records.

In selecting an attorney, how many clients would even consider these skills or know what questions to ask about these skills?  Given the same litigant, different attorneys will present vastly different cases to the court based on what allegations that attorney learns about and finds helpful and consequential, and what records that attorney obtains.  This screening process—combining elements of experience, judgment, and diligence—is probably more important than the trial skills of questioning witnesses or addressing evidentiary issues.

Allegations and records determine outcomes.

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