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LITIGATION DECISIONS - When The Attorney Makes The Decision

Updated: 05/04/2023

Est. Reading: 3 minutes

Family Law attorneys should not be making decisions for their Clients.  The Client should be making the decisions. It is the job of the attorney to provide enough information, expertise and guidance to the Client, so that the Client understands the options available, the risks or consequences of those options and the Client can then make a decision that is right for them and for their family.  However, when the case lands in the courtroom, there are times the attorney must make the decision(s) without the Client’s input or control.

Litigation in a courtroom is different than what occurs in the attorney’s office or during negotiations with the opposing party. Litigation is directed by the Judge.  It is the Judge’s courtroom and they are in charge of how the case will proceed.  The Judge sets the schedule for which case will be heard, how much time will be allowed for the presentation of the case and rules upon all issues that arise while the case is being litigated, applying the rules of procedure and evidence.

Often, immediate decisions must be made by the attorney based upon what the attorney hears from witnesses, opposing parties and the judge. The attorney also sees—from a legal and tactical viewpoint—what is taking place between the participants in the case—including the judge—and must react immediately and appropriately.

The attorney must know what “evidence” exists and what does not exist because they may need to make an instant decision based upon the options available at that time. All decisions regarding the presentation of evidence should always be a product of the facts and the law—but must always be viewed with the risks and consequences the attorney assigns to what is occurring in the courtroom.

A recent incident, experienced in court, demonstrates this concept. A Client was accused of certain illegal behavior. The accusing party had the burden of proving the Client had done the illegal act. When the accusing party finished their presentation of evidence and witnesses, the attorney had to make a decision—should the Client testify?

If the Client in this case didn’t testify, the case was concluded and the judge would make a ruling—guilty or not guilty. If the Client testified, they could refute the allegations and bring forth evidence showing that the accusing party is not being truthful. The Client wanted to testify so the court would understand how the accusations were unjustified and the accuser was vengeful and deceitful.

The Client, in essence, wished to present as the real victim in the case—and this position was justified. If the court truly understood what had occurred, the Client would be found “not guilty” and the accuser could be charged with perjury. However, the attorney also knew that every time someone testifies, there is a potential for negative or harmful testimony to be elicited.

All attorneys with enough courtroom experience, know that “facts” and words can be presented in an unintended way that skews their meaning and effect. Emotions and the inherent anxiety experienced when testifying can interfere with clear thinking and, almost always, influences the delivery of the intended message. The attorney cannot fully control the questioning by the accusing party and often the information showing the accuser is the one at fault gets confused with the actions of each party.

In the recent incident described above, the attorney made the decision to not have the Client testify. Sounds easy, right? It wasn’t. When determining that the Client will not be testifying, the attorney better be certain that the accuser has not met their burden to prove their case. If the attorney is wrong and the court ultimately finds the accuser has met their burden, the attorney will have just condemned the Client to “guilt” rather than having the Client explain what really happened.

This is where the attorney’s experience, knowledge and instincts—hopefully honed through years of courtroom litigation—are invaluable. The attorney must be a strategic thinker and have the courage and ability to make the determination that the accuser hasn’t met their burden—and that the Client will remain silent, rather than risk a bad outcome.

Trusting the attorney to make the right decisions in the heat of battle—because the attorney has earned that trust—is the ultimate proof of the attorney’s advocacy and the Client’s good judgment.

If you need a divorce lawyer in Colorado Springs that you can trust, count on Jeanne Wilson to help you feel comfortable and assist with your family legal needs.

The Family law firm you can trust.

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