I was saddened to learn of the passing of a former client a few days ago. I had the opportunity to get to know her both personally and professionally. Over the years, I would call upon her professionally, and she would silently provide needed assistance for people as much as I would like to go into it because it could reveal her identity. She leaves behind two children, and while they may be okay with what I’m about to write for their privacy, I’m going to conceal her identity, as well as the identity of others.
My first professional involvement would come 33 years ago. For this, my client shall be known as Mary. The opposing party shall be referred to as John. For this, the children need not be named. The other attorney will be opposing counsel (OC). My daughter, Krystal, took the photo accompanying this was taken around the time of the trial.
Let me take you back to a case that I remember vividly. It’s the case of Mary and John. This was not just another case; it was unusual, more than it needed to be.
The outcome is that Mary won; the unusual part is how we got there. John had a very good attorney. Before going on, I have to give kudos to OC. Although the final outcome would have remained the same, some attorneys would have fought a losing battle to fight, either out of pride or to run up fees. Over the years, I had many cases and trials with OC, including what I consider one of my best. OC was tough, always prepared, and at all times professional.
The trial itself was nasty. There was no love lost between Mary and John. Cross-examination was brutal. At the end of the trial, we did our closing arguments, which was always my favorite part, and the case was then submitted to the judge for a decision. This judge would sometimes review his notes while the attorneys and parties sat and then issue a verbal decision with reasons for it.
Or, the judge would go back to chambers to consider it. If it was clear the judge was going to rule, we could hang around the courthouse to be summoned back in to listen to the decision. The other option would be to return to the office and wait for a phone call. If the judge was going to write the decision, we could leave and wait, whether it was a few days or weeks.
There is a third option, one I don’t think most attorneys like, even though an attorney can request it. The judge took the third option, asking attorneys to prepare Findings of Fact and Conclusions of Law. We had seven days to do it.
If you’ve not been through this, let me explain what Findings and Conclusions are. I put together the facts the court should use to make a decision based on the testimony and exhibits, then do the conclusions the court should make based on those findings. Those conclusions would serve as the final order.
I put the best spin on the facts I could for my client, concluding we should win. The OC does the same thing on behalf of his client. It doesn’t mean you ignore the bad aspects of the case. You have to deal with those because you know the OC will bang you over the head with those. There’s a little more to it, but that’s what is meant by Findings of Fact and Conclusions of Law. Arguments in court can be over the timing of the filing by each party.
It may seem like a silly exercise. It makes the judge’s work easier, sometimes too easy. Often, a judge will pick and choose facts from each side, likely after the judge decides. Sometimes, the judge will use what is provided, writing his Findings and Conclusions, putting aside the summary attorneys invariably do. It is nothing more than making the closing statement again, this time in writing. I’m sure judges read that portion. It’s our way of highlighting what should be evident in the first two sections.
So, the judge writes, does some copying and pasting, and issues the final decision. Here’s the rub for the Mary and John case, and it’s the only time I ever had it happen in all the years I did this.
I knew we had a strong case, so as I was reading the Findings and Conclusions of the judge, I was reading the facts to be found as I wrote in my submission. It was a good sign because it meant we won. But when I got to the second section, we lost everything. My first call was to Mary to explain it to her, but there was no logical explanation.
The judge found she was the best parent and John was a lousy parent; then concluded that John would have custody, and Mary would pay child support. My next call was to the other attorney. OC had read it. I let OC know he would lose on appeal, but I would file first for a new trial. However, we should have a conference with the judge first, and I was calling the court immediately. OC agreed we would win on appeal, and there was no doubt the court would grant a new trial, but agreed we should have a conference with the court.
Some attorneys on the other side would have balked at everything, laughed, and told me to do what I felt I had to do. However, OC had a strong sense of professionalism. I’d like to believe I would have done the same, but at that stage of my career, every case was one to destroy, annihilate, and win at all costs. The attitude didn’t change, but I did get to a point where experience and plain common sense came into play.
We had our conference. I took the lead since I called for it to tell the judge he screwed up without saying it that way, except as a last resort. I had a theory of what probably happened, and it turned out to be correct. Our original drafts of the Findings and Conclusions still existed as part of the record. The judge rewrote part of mine, but my revised Findings had OC’s Conclusions attached when his administrative assistant put the final together. The judge fixed it. Mary still had custody of the children.
As I said, Mary was a good, kind woman. She had two good children; as I write this, both are around 40 years old or older. My hope is they’re doing well and coping with the recent loss of their mom.