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Family Law

Updated:

June 14, 2022

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Divorce Attorneys Tactics and Strategies: Depp & Heard Case Study

Figuring out the appropriate lawyer tactics to use in a high-conflict divorce can be tricky. You need to find a lawyer who will give you the best chance of success. This article will discuss the top legal tips for family law trials. These tips can provide you and your lawyer with a better chance of success in your divorce trial.

Three Approaches to Resolving a Divorce

There are three main approaches to finalizing a divorce. These include direct negotiation, alternative dispute resolution, or a trial. If you’re wondering how to win a divorce settlement and avoid a trial, you can try to work amicably and come to a compromise that everyone agrees with.

If this doesn’t work, you can try alternative dispute resolution tactics, such as mediation. However, if neither negotiation nor mediation works, the case will likely need to go to a family law court.

Common Divorce Attorney Tactics

Over the past few months, the world witnessed the Amber Heard and Johnny Depp defamation trial.

While the couple divorced in 2016, allegations of Depp’s abuse of Heard during their 15-month marriage culminated in her writing an op-ed in The Washington Post, expressing herself as “a public figure representing domestic abuse”. The op-ed led Depp to accuse Heard of defamation, leading to a trial in a Fairfax, Virginia courtroom.

What has played out on worldwide TV and social media has been quite shocking. However, some of the methods used by both Heard’s and Depp’s attorneys are clear examples of techniques that high conflict divorce attorneys use in the courtroom.

how to fight a divorce

Swarming (The Pressure Cooker)

Imagine standing next to a dozen beehives in an enclosed space. The bees fly around you, and you’re unsure when one will sting you. Your reflexes will probably tell you to bat the bees away with your arms or run out of the enclosure. However, if you do, you’ll likely get stung, not just by one, but by dozens of bees.

The swarming strategy works similarly. A high-conflict divorce attorney will employ this tactic by always finding something wrong with the other party’s actions. There will be one-liners, veiled comments, and barely concealed disdain for their opponent. All of this is meant to discredit the other spouse and paint them in a negative light. 

In a courtroom, this can be a highly effective strategy. When the judge constantly hears remarks that tear down the other person’s character, they may get the wrong idea. Judges who are not more discerning may be persuaded to form a biased opinion. Thus, the other party’s attorney must be an effective advocate for their client. 

To win against a swarmer, a good attorney will need to be very calm and stay above the comments. Rather than react to every negative thing said, they should only respond to remarks that are true accusations. 

If something is said that does have a chance of impacting the course of the case, an attorney should address it seriously. Otherwise, let it be. If they don't, the attorney is playing into the swarming strategy, which only drags down the case.

Brawling

Brawlers are attorneys who have information on the other party or their character that could potentially sway the case. The attorney will use this information at the most opportune time during the trial to knock down their opponent. For example, if the other party is a workaholic, they’ll make it a significant issue. 

To build an adequate response to a brawler, a lawyer should fully understand the issues at hand. They can make suggestions to the client to mitigate the damage to their character, such as attending a rehabilitation center for alcohol abuse or setting up a better work-life balance.

During the Depp vs. Heard trial, evidence of brawling was present on both sides. Heard’s lawyers repeatedly accused Depp of physically abusing Heard and using cocaine and alcohol. Depp’s attorneys fought back by admitting Depp’s substance use but countering with an allegation that Heard had thrown a vodka bottle at him that cut off a piece of his finger. 

Winning on Points (Boxing)

A boxer is a challenging type of attorney to encounter. Their divorce tactics to win the case aren’t focused on tearing the other person down. Instead, they build an excellent defense. When they decide to counterpunch against an allegation, watch out: it’s likely to be a whammy.

When going up against an attorney trying to win by points, realize that the attorney’s main goal is to win more arguments throughout the case. They’ll defend every allegation with thoroughness and facts. They are focused on their own goals for their clients, which may include spousal support, property division, or child custody.

Like with the swarming strategy, a good attorney shouldn’t focus on defending the client from every allegation that a boxing attorney makes. Instead, the attorney should go on offense.

Reasonable claims should be made as to why the client shouldn’t pay spousal support or split child custody. When lawyers refrain from being drawn into a battle of words and instead stick to their goals, they are more likely to win points.

divorce tactics to win

Hiring a Top Dog

Wondering how to fight a divorce? If you’re looking to zero out the other party’s legal defense strategy, hire a top dog.

Top dogs show their worth in the courtroom. They usually have lots of legal experience and are partners in their firms, with several associates working for them. A top dog will combine swarming, brawling, and boxing strategies, and you won’t be quite sure what will come next.

If the other party in the divorce has hired a top dog, the best way to beat them is by hiring an outstanding boxer. You’ll want the best boxing lawyer that you can find who will wade through all of the mischiefs that a top dog can bring to the courtroom.

If you hire your own top dog, you could be looking at a long and expensive trial. When two top dogs battle it out in the courtroom, lawyer fees can escalate. The trial will end after a lengthy period, and there might not be much to show for all of the money paid.

To mitigate your expenses, choose a lawyer who knows how to effectively fight the top dog without responding to every allegation they make.

In the Depp vs. Heard trial, Depp had hired a top dog lawyer, and Heard was an effective boxer. For example, Depp’s legal team put a non-board-certified psychologist on the stand who declared Heard had a borderline personality disorder and histrionic disorder after only one 12-hour session. In response, Heard’s legal team called a well-known forensic psychologist to dispute the allegations.

Trial Tips and Divorce Strategies for Family Lawyers

When preparing for and participating in a divorce, have the following ready.

Create a Witness List

An attorney should compile a witness list of every person needed to testify on the client’s behalf during a trial. These witnesses should be able to attest to specific events or circumstances that formulate the basis of the case. 

The list will need to be given to the other party’s legal team at the trial readiness hearing. No more than five witnesses should be included unless there are specific reasons why more are required. A good attorney should consider including their client on the list.

Subpoenas

Whoever is designated as a witness for the trial will need to be subpoenaed to appear in the courtroom. Ensure that the witnesses know that they will be asked to testify so that they aren’t surprised when they receive a subpoena. 

The judge will need to approve each witness for their testimony to be heard. To obtain the judge’s approval, the lawyer will need to file a Motion for Order for Issuance of Subpoenas, an Order for Issuance of Subpoenas, and the actual subpoenas. 

Know Your Judge

During a family law proceeding, there is no jury. The judge will decide the entire case. Thus, it's wise to make sure the attorney understands the judge’s background and legal history.

If the attorney knows other lawyers who have been in the judge’s courtroom, they should ask what their experience was like. Understanding the judge can help the lawyer develop a legal strategy and ensure that they know the judge’s preferences during a trial. The lawyer doesn’t want to do something that will annoy the judge.

Personal Testimony

The next step the attorney should take is establishing their client’s personal testimony. A skilled lawyer will ask their client to start at the beginning of the relationship and describe all facts and circumstances as they recall them.

Not all of these facts may be relevant to the trial, so the attorney will want to identify the ones that are. The points addressed during the trial should be pertinent to the issues at hand. This is one of the ways to win in a divorce trial.

Establish a Solid Defense

Establishing a solid defense should be high on the attorney’s list of divorce strategies and tactics. There should be clear evidence that refutes any allegations against the client. This can take a lot of time and hard work, but it is well worth the effort.

When the attorney disproves a claim against their client and proves that it was categorically false, the judge may be less likely to believe anything the opponent’s legal team says. This can be very helpful to the case.

Prepare Your Witness for Trial

It’s vital to prepare any witnesses the attorney plans to call for a trial. To do this, the attorney should explain how the witnessing procedure works. The attorney will want to practice the questions they plan to ask witnesses on the stand. 

Witnesses should also be prepared for counter-questions the other side may ask. If a witness tends to talk too much, the attorney should help them develop more concise speaking skills. Talking too much may give the other side more material to tear down their credibility. 

Form an Attack Theory

When deciding on how to win a divorce case, developing an attack theory can be helpful, especially when children are involved. An attack theory requires the attorney to explain the details of any particularly egregious offenses of the other spouse in hopes that the judge will be more supportive of their client’s circumstances.

For example, if a client is fighting for sole custody of children, pointing out the other spouse’s substance abuse issues may put the court squarely on their side.

Build a Compelling Story

Curious how to win in divorce court? A good attorney will make sure that the narrative presented to the judge surrounding the client is very engaging. The attorney will want the judge to understand the client’s story and why they deserve to win the case.

To build the story, the attorney will need to consider the client’s personal testimony and make sure that it aligns with everything presented in the case. They may try to evoke as much emotion from the judge as possible.

Trial Readiness Hearing 

The trial readiness hearing is conducted approximately one month before going to court. The purpose of the trial readiness hearing is to ensure that both parties are fully ready and prepared for the trial. 

During the hearing, the judge will ask each attorney for a list of witnesses. Attorneys will provide copies of their witness lists and request that the judge sign subpoenas. If there are any technical problems with the trial, this is a good time to bring them up.

Trial Exhibits Binders Should Be Easy to Use

Attorneys are required to submit any trial presentations within a few days of going to court. Exhibits must be straightforward and easy to understand and review. The number of exhibits should be minimized so that their meaning isn’t lost on the judge.

There is no reason to overwhelm the court with excess documentation. The judge will be using the exhibits as part of their decision, so the legal team must ensure they are impactful and align with the facts of the case.

Dissipate Any Anger and Be in Control

Find a lawyer who can stay in control when in the courtroom. While the outcome of a case doesn’t affect a lawyer financially or personally, some lawyers can react emotionally if the other side questions their abilities or their client’s story. 

A good attorney will stay in control throughout the trial and take a tactical approach to any setbacks. They should understand the methods that the other side is using and choose an appropriate response to combat them. 

Rehabilitate the Client

If a client has a history of substance abuse, anger issues, mental health problems, or similar complications, these will likely be brought up at the trial. While there is nothing that a lawyer can do to prevent this, they can provide a defense for the client by having them voluntarily attend therapy or a rehabilitation center. 

Taking rehabilitative action provides weight to the argument that the client is trying to change for the better. If children are involved in the case, this can help the client retain visitation rights.

Make It Easy to Follow

Everything said or presented in court should be clear and easy to follow. During the attorney’s opening statement, they should ensure that the topics to be addressed during the trial are clearly outlined. 

Before examining the witnesses, attorneys should inform the judge what questions will be addressed and reference any applicable laws. This provides the judge with plenty of information to refer to when they make their final decision. No judge wants to be burdened with referencing laws and statutes at the end of a case. 

divorce strategies

Look at the Rules of Evidence

The Rules of Evidence govern all trials. Every locality and state will have its own set of rules. Before the court date, the attorney should review the regulations to ensure that any evidence presented meets the established guidelines. They should ensure that the trial presentations and exhibits don’t run afoul of the rules.

If the presentations don’t meet the requirements, it could annoy the judge or potentially derail the case. Being unprepared causes needless time to be spent on matters that could have been resolved in the planning stages.

Negotiate the Agreement

Not all requests need to be met to end a case. Oftentimes, the trial is the stage for negotiating a final agreement between spouses. Once all of the arguments have been heard, there may be more grounds for a compromise that meets the goals of both parties. 

If an attorney sees an opportunity for a settlement that would benefit both parties, they should act on it. This can help save legal costs and time for everyone involved while still accomplishing a positive end to the trial. 

Effective Help in a Family Law Case

A family law trial requires a lot of preparation and work. Both sides have their own story of their married life, and the judge is more likely to favor the side whose narrative is well-formulated and believable. You need to find an attorney who will consider the opposition's strategy and be prepared to fight it. 

At Brooks & Radchenko Law Firm, we are familiar with the shady, sneaky divorce tactics some lawyers use to tear down opponents. When we take on your divorce case, you can expect us to fight for you with appropriate and effective tactics. For help with your case, contact us to schedule a consultation.

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