Help the Judge Help You

During a continuing education class I attended in Southern California the presenter, a brilliant family court judge, related a story I am sure struck fear into the hearts of every attorney in attendance. The judge told the story of a trial he had presided over. At the end of the trial one attorney requested an attorney fee award of two hundred and fifty thousand dollars ($250,000.00). The judge felt that was a reasonable request, and would have granted it…if the requesting attorney had followed the rules and procedures for requesting attorney fees. But he did not make the request properly and the request was denied. That seems pretty harsh. I know the judge, and I believe him to be fair, but he is also a judge who believes the rules and procedures must be followed.

After that class I found myself in a family law settlement conference. There was a legal issue that was, in my opinion, so well known that I did not think it necessary to do anything other than mention briefly in my settlement conference statement. I thought everyone was familiar with that code section. The judge assigned to preside at the settlement conference, while quite knowledgeable in some areas of law, knew less about family law and was unfamiliar with the Family Law Code section I referenced. The opposing attorney, a certified family law specialist, knew exactly what I was talking about but the judge didn’t.

One of the challenges faced by individuals representing themselves is thinking the judge will step in and rescue them from themselves. They won’t. They don’t. They can’t. That is not the judge’s role. The judge is supposed to listen to the evidence, make sure each side has an opportunity to be heard, weigh the evidence, apply the law and issue an opinion. That is the theory at least. Judges are human. Life everything else, some judges are more knowledgeable than others.

The point of this article is that whether you are representing yourself, or represented by counsel, it is your responsibility to make your case. The burden is on you to present facts, whether through documents (properly presented) or oral testimony, The burden is on you to identify the appropriate laws and show the court why they apply in your situation. The burden is on you to tell the court what it should to and why.

Before you even get to the courthouse, whether in person or via Zoom, tell the court what you want (or what you don’t want) in your pleadings. Be specific. Tell the court what law or laws should apply. What facts (versus opinions) do you have? What documents support your position?

Do not assume anything.

Robert J. Busch, Jr. is a member of the California State Bar and practices family law and estate planning in Elk Grove, California.