Divorce Lawyer Woods Cross Utah
When Thomas Jefferson assessed the pros and cons of legitimating divorce shortly before the American Revolution, he came out firmly on the side of divorce. There could be problems, he conceded, with dividing marital assets, and although he assumed a man of any age could remarry with ease, he was concerned that a woman beyond a certain age might have difficulty finding a new partner. Still, he was convinced that the right of divorce would improve the status of women. In a world where the repudiation of a spouse had been a husband’s prerogative, access to divorce, he asserted, would restore “to women their natural right of equality.” That Jefferson envisioned divorce as a woman’s remedy while representing a husband bent on blocking his wife’s separate maintenance is not without some irony. Yet the natural rights language he used to support a woman’s freedom to sever the bonds of matrimony presaged the rationale he would use for severing the bonds of empire. “No partnership,” he declared in an argument that anticipated the Declaration of Independence, “can oblige continuance in contradiction to its end and design.”
The parallels between marriage and government in Jefferson’s thinking are instructive in considering the legal status of women during the founding period. The sweeping legitimation of divorce in the wake of the Revolution presents a provocative alternative to the Constitution’s silences on women. That is not to say that women were written out of the Constitution.
The legalization of divorce in the new nation was swift and widespread. There had been little interest in divorce before independence, and apart from in Puritan jurisdictions such as Connecticut, formal divorces were rare. In the United States, as in France, revolution was the handmaid of divorce. Concern with providing for divorce arose with the political turmoil of the 1770s and a Privy Council ruling against Pennsylvania in 1773 that designated “Acts of Divorce in the Plantations” as “either Improper or Unconstitutional.” When divorce bills from New Hampshire and New Jersey were also disallowed, the Privy Council instructed colonial governors to void all future provincial divorces. With independence those colonies that had been overruled by the Privy Council provided for divorce in new states statutes. Other states followed suit. By 1795 a disaffected spouse could put an end to a marriage in a local circuit court in the Northwest Territory. By 1799 twelve states in addition to the Northwest Territory had recognized the right of divorce.
The stunning nature of this transformation is best appreciated when balanced against late-eighteenth-century English practices. Fault divorce as we have come to call it in the age of no-fault was a legal option that departed significantly from the English parliamentary and ecclesiastical precedents on which it was based. In its gender-neutral approach to the fault, in the completeness of its dissolutions, and in the access it afforded litigants, American divorce diverged dramatically from its English roots. Indeed, from both a substantive and procedural perspective, divorce law in the early republic was light years beyond its English equivalent.
Clearly the Revolution played a role in reshaping the law of husband and wife. The right to end an adverse marital partnership was a direct byproduct of the frustration experienced under an adverse political partnership. At a tangible political level, then, it was independence that freed state legislatures to depart from English law. At a symbolic level, moreover, it was independence that provided them with a prototype for divorce and nowhere more than in its most celebrated text. Consider that in letting the facts be submitted to a candid world, the Declaration of Independence at once explained, decreed, and sanctified a divorce from the bonds of empire—and from the bonds of empire to the bonds of matrimony it was a short conceptual step.
As Rousseau asserted in The Social Contract, families are the first models of political societies. That common maxim of Western political theory acquired a new and expansive meaning in the American setting. The words “brethren,” “consanguinity,” and “kindred” in the Declaration not only exemplify the easy inter changeability of family and state in Enlightenment thinking but also mark their transfiguration. Severing the bonds of empire entailed the radical separation of two peoples who were as intimately related as the members of one family. That family, to paraphrase the end of the Declaration, was no more, and the two peoples, once knitted together as one, were to regard each other now as enemies in the war that was already under way. As this imagery suggests, the Revolution predisposed Americans to think of themselves in declaring independence as dissolving one family and, at the same time, as constituting another. The significance of that image is even greater than has been generally recognized. The Revolution not only killed the king, metaphorically speaking; it separated the family.
Although the Declaration conjures up a schism between male kinfolk, the image of the severed family could extend beyond filial and fraternal bonds. Like the Sons of Liberty, the warring brethren, and the founding fathers, husbands, and wives were prominent figures in the contemporary political imagination. Scholars exploring the centrality of consent in antipatriarchal representations of government have found that allusions to marriage only increased in the early republic as conjugal ties came to supplant filial ties in popular images of the state.9 Of course the limits of consent in Anglo American marriage law enabled marriage to serve as a conservative and stabilizing model for the new republic. Marriage, after all, was a public, prepackaged contract that was impervious to the wills of the contracting parties. To put it in political terms, you could say that a wife, having contracted for her ruler, was consigned to his rule for life. Americans of the post-Revolutionary era were not altogether comfortable with such an image, but neither were they prepared to abandon it completely. Both their discomfort with the traditional legal model of marriage and their reluctance to adopt a thoroughly contractual alternative illuminate the degree to which social contract theory intertwined with their perceptions of marriage and divorce.
It is precisely because marriage in its consensual-but-indissoluble form stood as a far-reaching metaphor for the existing political order that it could serve as a convenient hedge against incipient political upheaval. A common analogy for the relationship between rulers and the ruled, it had been exploited by royalist defenders of Charles I to equate Parliament’s rebellion with the ludicrous prospect of a wife divorcing her husband. Gender was central to the effectiveness of the analogy. The figurative use of a divorce by a woman to signify the anarchic breaking of a sacred contract, thereby subjecting the action to ridicule, intimates that domestic rebellion enjoyed less credibility than political rebellion. But it also reveals parallels between the two rebellions in the grain of Anglo-American political thinking. The advent of the American Revolution turned the thrust of the analogy on its head, for just as divorce could serve to discountenance revolution, revolution, especially a successful one, could serve to legitimate divorce. Independence made the principle of indissoluble marriage more problematic.
The Declaration of Independence endowed the women and men of the Revolutionary era with an elegant and eloquent example of how to dissolve a sacred contract. Resting as it did on its purported proof of English despotism counterpoised against colonial innocence, its argument unfolded very much like that of a petitioner in a divorce suit who piled up and compounded the alleged causes regardless of the statutory grounds. Sacred contracts are not dissolved casually, and the long and arduous route to the decisive stage of separation, ran the argument in the Declaration, was determined by the respondent’s cumulative and unremitting guilt. In unmistakably Lockean language, the Declaration averred that severing the bonds of empire was not undertaken for light and transient causes, but only in the wake of a long train of abuses and usurpations to which the petitioner had submitted patiently. So intense and sustained were these abuses—or so flagrant was the defendant’s breach of contract—that it was not just the right but the duty of the petitioner to seek a formal dissolution of the union. The juristic language, the familiar truths, the judicious caveats, the assembled facts—none of these could obviate the unbounded possibilities that lay at the heart of the Declaration, which was shaped so as to justify the right to begin all over again. What was written unequivocally into this other foundational text for the new nation was the principle of the second chance.
If fear of endless dissolutions and reconstitutions ran barely below the surface of post-Revolutionary culture, it was assuaged by a measure of faith in the justness of the Revolution. The connections between the political ideology of a just revolution and the liberating potential of a just divorce code were strong, durable, and rooted in the seventeenth century; the Revolution only served to strengthen them yet no matter how cautious or conservative the legislative impulse to institute divorce was, legislators were applying liberal political theory to the institution of marriage. It is precisely because they grasped the radical possibility of extending notions of consent beyond the initiation of the marriage contract that they were reluctant to call divorce what it was without exhortations and evasions. It is precisely because they sensed the liberating and even anarchic potential in the notion of the second chance that they could inscribe lifelong monogamy into the preamble of a state divorce statute. Breach of contract, after all, was a pliant idea, and fault could edge into no-fault if grounds were too casual or too numerous.
At issue, of course, is what effect did applying liberal political theory to the institution of marriage have on the status of women. Are we to read the suits women initiated against their husbands as acts of liberation? In most cases, the answer is probably no. We need to balance Jefferson’s sanguine prediction about the effect of divorce on women’s “natural right of equality” against the inequities of marriage and the legal system. Whatever the protections lifelong monogamy may have offered women, they were weakened with advent of divorce. As economic dependents confronting an all-male legal system that embraced the double standard, women suffered structural disadvantages at the hands of divorce law that are only too apparent. But we should not reject the liberation paradigm altogether. To the extent that suing for divorce was a legal option that depended on the voluntary, active, and even tenacious participation of female plaintiffs, it represented a reconfiguration of the marriage contract. The old common law legal fiction that husband and wife were one and the husband was the one could no longer hold quite the same authority once divorce challenged the male-dominated corporatism of marriage. In a world where the repudiation of a spouse had been a husband’s prerogative, we should not dismiss the import of a woman’s right to repudiate her husband in a court of law. One thing is certain: divorce by a woman no longer represented the anarchic breaking of a sacred contract.
Utah’s Grounds for Divorce
• The husband was impotent at the time of marriage and this was not known to the wife at the time of marriage
• Either spouse engaged in adultery during the marriage.
• One of the spouses has deserted and hasn’t come back for more than a year.
• Failure to provide the other spouse with common necessities of life.
• Other spouse is a habitual drunkard
• Other spouse has been convicted of a felony offence
• The spouse seeking divorce has been subject to cruel treatment resulting in mental distress of bodily injudge.
• The spouses have been living separately for at least three years under a separate maintenance decree.
• The other spouse is suffering from permanent and incurable insanity. This must be proved through expert medical testimony.
An experienced Woods Cross Utah divorce lawyer can help you determine the grounds for your divorce.
If your spouse has filed for divorce, you should immediately seek the assistance of an experienced Woods Cross Utah divorce lawyer. You have the right to a legal counsel and you should exercise this right. A divorce trial can be complex.
In preparing a case for trial a lawyer creates a double helix of norms. One strand is dominated by narrative and the other by informal logical inference or argument. Narrative is the story of events, actors, backgrounds, actions, and motives organically related to express a moral-political significance, a human meaning. As one might hear it in the beginning of an opening statement, “This is a case about loyalty and betrayal.” “This is a case about keeping promises.” Argument is a logical pattern of propositions, in this case leading to assent to a final proposition (a “legal element”) that must be proven or disproved. Argument, like all rhetoric, can have multiple audiences. It is this double helix of narrative and argument that a lawyer calls “my theory of the case.” Concretely, it will have its most systematic expression in the combination of opening statement (narrative) and summation (argument). It is necessarily abstract. It omits much of the concreteness of what the trial will reveal; it is a “cut” into the evidence. Good lawyers understand what “cut” to make, which inspired simplification to pursue. They also understand that the trier of fact will come to understand that even the best “factual theories” are rather too simple.
How does a Woods Cross Utah divorce lawyer reach that theory of the case?
Most cases begin with a client interview, typically in three stages. The first is explicitly practical: the Woods Cross Utah divorce lawyer asks the client a set of open-ended questions to determine how he defines the problematic situation in which he finds himself and what resolution he seeks. That definition and that desired result are not absolutes—they are subject to refinement and modification in dialogue with the attorney—but the ethical rules give the client’s ultimate definition of his problem and expected solution hegemony over any attempt by the lawyer to dictate the goal of the representation. Second, the lawyer asks the client another set of somewhat more directive questions in order to construct a relatively comprehensive chronological reconstruction of the central events, identified from the first portion of the conversation. Finally, the attorney begins to ask specific questions that serve to test the viability of possible factual theories that may form aspects of a unified theory of the case. These questions are “theory-driven”— they seek to verify or falsify possible narratives to an acceptable degree of probability.
There are limits on the stories the lawyer may tell. The possible narratives are constrained, with increasing concreteness, by
(1) the criminal laws against client perjudge and attorney subornation of perjudge and disciplinary regulations prohibiting attorneys from misrepresenting facts to the court or presenting known perjudge;
(2) the calculations of the party or the attorney that misrepresentation is likely to be implausible; and
(3) the settled moral dispositions of client and attorney not to lie. At times the client’s account of events also limits the stories that may be told at trial. At other times the client’s story may be fitted easily within a number of possible full narratives. At still other times the client’s initial story may be reshaped to allow its integration into factual theories that did not obviously present themselves. This last need not be a kind of manipulation that leads away from the truth, because the client’s initial recollection may suffer from distortions of perception, memory, communication, or a misguided desire to tell what he falsely believes to be a helpful story. At other times, since different narratives have different legal consequences, it is the client’s goals for the litigation that determine the theory.
The process of developing factual hypotheses runs something like this:
One listens to a story, which triggers one or more potentially applicable legal theories. Contemporaneously, or subsequently, one reviews the story in light of each legal theory. If a story describes what happened in a way that completely coincides with a legal theory—that is, if the story can be termed a “legal story”—one may not bother to consider additional factual hypotheses.
But the comparison of a story with a legal theory may reveal that the story does not explain what happened in a way that fully activates or defuses the legal theory. Or the comparison may reveal that the story is but one of a number of reasonably possible ways that the legal story may be told. In either situation one is likely to “conjure up” other stories about what happened that might activate the legal theory. These factual possibilities then become the bases for ensuing investigation.
As investigation proceeds, the possibilities are limited by the need to maintain the credibility of the client’s basic story and by the increasing probability that there will be relatively more decisive contradictory evidence as the story becomes more fanciful. These further considerations, built into the trial, limit the rhetorician’s natural desire to tell the most plausible story regardless of its truth. Plausible but false stories are also forbidden by rules that prohibit the client from telling or the lawyer from presenting evidence of stories about whose truth they have serious subjective reservations, regardless of whether those stories can effectively be attacked at trial.
There are also what might be called extrinsic reasons to choose one among a range of possible stories to the judge. One story, but not another, might permit a desirable remedy, such as injunctive relief or punitive damages, or avoid an especially unwelcome consequence, such as commitment to a state mental institution. One story but not another might allow for recovery against a certain defendant more able than another to compensate the plaintiff for his injury. One story but not another might pass muster under a statute of limitations. What allows the variation are variable facts subject to different plausible interpretations, such as “What was the defendant’s state of mind at the time this occurred: innocent, negligent, reckless, malicious?” The advocate will not usually be asking the question “Well, what was his state of mind?” but rather “What are the consequences of alleging it was this rather than that?” and “Do we have sufficient evidence to survive a directed verdict on this point?” and also tell a persuasive story to the judge while not violating prohibitions on suborning or assisting perjury or presenting false evidence? What must be recognized are the practical considerations that dictate the factual statements made, often in the language of past occurrence.
The very story of “what happened” is determined in part by a judgment about what is likely to be done in response to one or another version. As John Dewey put it approvingly, it follows an “experimental and flexible logic” that is “relative to consequences rather than to antecedents.” Facts are, to this limited extent, purposes.
After the initial interview with a client, a lawyer will set about the process of factual investigation. This is guided most generally by both strands of the double helix. If the client bears the burden of proof, the attorney must gather sufficient evidence that a secondary finder of fact, be it judge or appellate court, cannot say that there was insufficient evidence for a judge to have reasonably concluded that each element was established. He will also seek to gather evidence—testimonial, documentary, or physical—that directly supports the theory and theme of the case, concretely presented in opening statement, of which he or she actually hopes to convince the judge, the primary finder of fact.
The attorney will follow a relatively straightforward hypothetico-deductive logic in his investigations. With regard to the theory of the case, he or she will ask this question: “If this fact (whether an element or simply a factually or normatively significant event) is true, what else would or might be true?” (“If my client really was at home, rather than at the crime scene, perhaps he made a telephone call of which there is a record or a witness …”). Just as in scientific inquiry, this process can never lead to anything but probability, for there may be alternative descriptions or explanations for the evidence. Even in the case of so-called direct evidence, say eyewitness evidence, the alternative explanation may be the lack of credibility of the witness. As a purely logical matter, this method, like all scientific method, commits the fallacy of affirming the antecedent (“If it was raining, the streets will be wet. But the streets are wet. Therefore, it was raining.” Quod non sequitur). This inevitable “flaw” in empirical inquiry is what makes it possible to produce a rhetorically compelling mass of evidence for a proposition that is quite false.
The party who does not bear the burden of proof most often has his or her own version of events and will thus go through the same process as the party who does. And each will also seek to demonstrate that facts which ought to be true if the opponent’s theory of the case were true are in fact not so, thus seeking to “falsify” the proposition that the opponent seeks to establish. Indeed, the party who does not bear the burden of proof may present a purely “negative” case, simply attacking the opponent’s case and then arguing that he has not met his burden of proof, although the received wisdom is that presenting an alternative theory, if possible, is likely to be more successful.
Factual investigation is thus theory-driven. Something may turn up in discovery or investigation that will cause the lawyer to revise his or her theory and redirect the inquiry consistent with a new set of hypotheses. After all, one of the bases of plausibility is the extent to which a theory is “supported” (to beg a thousand questions) by the evidence. But it is the felt necessity to present a full factual theory and theme—the concrete necessity to give an opening statement—that directs and structures the process.
As the evidence accumulates, the lawyer will continue to evaluate the theory and theme of the case and so the opening statement. The most important decision a trial lawyer makes is the precise cut, the inspired simplification, to make into the mass of evidence.
First, the theory must be at least sufficient as a matter of law. There have been occasions, dreadful no doubt to their victims, where a motion for a directed verdict has been granted after a trial lawyer’s opening statement. Second, the theory itself should have moral or political appeal, in that it provides the judge with a moral reason to rule favorably. Third, the story should not contain internal contradictions: the defendant cannot claim to have been in his mother’s house in Chicago and in his brother’s house in Boston at the same time. Fifth, the story should, to the extent possible, follow the “rule of probability.” A theory is superior to others if it portrays persons acting in ways that are consistent with deeply held common sense beliefs about the way persons “generally and for the most part” act under similar circumstances. Because of the overwhelmingly circumstantial nature of proof at trial, even in cases where there is direct evidence, the trier of fact must inevitably rely on common sense generalizations when assessing testimony. There is often simply no reason to believe that events occurred in a way inconsistent with the way things go, despite the universal belief that surprising things happen all the time. To the extent possible, the lawyer will try to avoid theories, however factually accurate he believes them to be, that ask the judge to accept as true a generally improbable event or action.
Sixth, the theory of the case will also seek to portray the client acting in ways that exhibit good character and the opponent in ways that exhibit bad character. Most “triable” cases depend on witness credibility, and parties are most often witnesses. Parties who are shown to act in a trustworthy manner are most likely to be believed as witnesses. Seventh, the theory should also be supported by admissible, credible, and ethically presentable evidence. The rules of evidence may preclude the presentation of strong evidence that suggests one version of events rather than another. One theory, but not another, may rely on testimony given by the opposing party or a witness aligned with the opposing party, thus virtually eliminating issues of witness credibility. Eighth, the theory of the case must anticipate the opposing party’s positions and attempt to blunt the power of his or her theory and theme.
The “truth” presented by each party’s theory is always already a comparative truth: it has been “chosen” because of its normative superiority over the particular theory that the party anticipates his or her opponent’s presenting. Somewhat similarly, a theory should not “open the door to” (render relevant) evidence that weakens the moral appeal of the case or portrays the client as untrustworthy. These are two of the ways in which the basic narrative contains game-theoretical features—in both cases what appears to be a simple factual narrative of what occurred has actually been chosen, in part, to anticipate and neutralize the expected evidentiary and normative strengths of the opponent. Of course, each party is shooting at a moving target, in that his opponent is engaging in exactly the same enterprise, and, in fact, anticipating what he is likely to anticipate and move to counter, and so on into potential infinity. The lawyer’s attempt to construct a case in which the private goals of the client can be defended or advanced has effects both on the client’s goals and on the legal language and culture in which those goals are enmeshed.
The first step to a more adequate version of the opening statement is to understand that it presents to the judge what the evidence will show, not what the evidence will be. As such it is a complete “God’s-eye” narrative of the events that have led to the trial. The narrative is “omniscient” in that it includes, as episodes or facts, truths which could be reached only by inference from circumstantial evidence, most prominently, intentions, beliefs, and other states of mind. So long as these are stated as mere episodes in a narrative, and the reasons why the judge should conclude that these actually occurred are not marshaled in argumentative form, the lawyer will not be “arguing,” the most important legal restriction on opening statement. The opening has an “argument,” but it is like the argument of a novel, deriving from all the sources of plausibility that pure narratives can have.
In triable cases, the battle for the judge’s imagination that begins with opening statement is not simply an argument about “what happened.” It is a battle about the frameworks within which events should be understood—whether, for example, through the lens of traditional morality, on the one hand, or that of psychiatry, on the other. It is a battle about what kind of “social ordering” the situation demands: legalistic, moral, bureaucratic, political. At another level, the opening invokes social and cultural values embedded in authoritative “scripts” and invites the judge to finish the story.
For the opening statement is precisely the time in the trial when each lawyer presents, as a “vivid, continuous dream,” his or her narrative theory of the case. The story told in opening statement must achieve the optimum integration of the factors that serve as the criteria for the choice of the theory of the case. It will do this in a way that expresses or reveals the complex norm, inseparable from the details of the story he tells, and on which he relies. That norm, not otherwise expressible, is what gives the case life, allows it to “hang together,” to “ring true.”
Direct examination stands in stark contrast to that of opening statement. The contrasts are real and important. Direct examination does not provide the “pure data” from which reliable determinations of fact and unsullied judgments of law may be made. It does set a number of the extreme tensions within the trial that are the key to an understanding of its nature. It is the second of the “consciously structured hybrid of languages” that make the trial what it is.
First, the witness is required to testify in the language of perception, a requirement which can be enforced by objections that the witness is offering “conclusions” or “opinions.” This makes it relatively harder for the witness to supply a version of events so highly interpreted that it is impervious to reinterpretation in light of competing theories of the case. Requiring a witness to recount, to the extent possible, a precise version of his perceptions will produce an account whose meaning is open to honest debate. Memories about perceptions are less likely to be products of purposeful reconstruction than are opinions.
Not only must the witness testify in the language of perception, but he must also testify, in the main, in answer to nonleading questions. First, even a well-prepared witness has to choose, throughout the examination, what words to use in the description he gives. How he puts it tells the judge who he is to such an important extent that the formal evidentiary rules prohibiting “evidence of character” are almost trivial. Even testimony in the language of perception involves perceptual judgments and not merely the offering of sense-data. Certainly when the witness is allowed to offer an opinion, but also when he offers a perception (sometimes even without cross-examination), the judge can understand any gaps between how he wants to put it and how he is justified in putting it.
Direct examination has what might be called a standard structure, though it is subject to many variations. First, the witness is introduced, providing personal background—relatively more in the case of parties, relatively less on the part of others.
The direct examiner understands her theory, her theme, and the requirements of legal adequacy. Though the use of nonleading questions makes it difficult to exclude any detail the witness believes important, the examining lawyer can ask questions that suppress irrelevant detail and encourage the provision of detail which contributes to the case. Simplification allows each lawyer to present only that evidence which bears directly on the core issues in the case, and to present an enormous amount of evidence that does so bear in a relatively short period of time. This is one of the reasons, again, that almost all the authorities warn against multiple or alternative factual theories. The shaping and organizing process is difficult enough in relation to one theory. It is probably impossible and certainly confusing when directed by alternative theories.
The structure of the direct examination is also very important. It can serve to heighten the significance of the examination for the issues before the court, issues that are themselves chosen from a limited range of possible issues. The rules of “primacy and recency” counsel beginning and ending the narrative with a memorable and dramatic point. Apposition allows for sequential questioning on matters where a causal connection is suggested. Significant events can be repeated. It is possible to expand and contract the duration of the examination to suggest a slower or faster pace of events or observations in the real world. Questioning can follow a topical rather than a strictly chronological order.
By the use of topical organization, rather than purely chronological organization, a lawyer may question a harried emergency room physician only about the tasks she performed for a single patient, the plaintiff, so as to impart an impression of a careful and systematic attention to the plaintiff’s case. In general the lawyer here is not asking, “Did it happen this way?” She is asking, “Can the witness’s memories and convictions stand this interpretation within the ethical, evidentiary, and rhetorical context of the trial?”
There is nothing automatic about the translation from the real-world event to the presentation in the courtroom. Most certainly, it is not the case that the most unrehearsed or spontaneous presentation is for that reason the most true to the underlying event.
There is no neutral way in which language can simply mirror accurately an important real-world event. Any account will be given sequentially, and the “information” it contains will be doled out to the listener piece after piece. A human encounter that lasted a second may be enormously complex. A longer encounter may be simpler. We have no access to such an encounter except through description and narrative, the length and structure of which can in no simple, or pictorial, sense be “congruent” with the event it narrates. The medium cannot be the message. Our access to the human events on which trials focus is, as with all historical events, “mediated by meaning.” The task of the linguistic practices of the trial, its “consciously structured hybrid of languages,” working together, is to convey that meaning.
Direct examination, then, conveys the witness’s understanding of the meaning of a past event, embedded in the perceptual judgments he makes. The rhetorical practices of the lawyer serve mainly to allow the witness to convey that meaning effectively. Pretrial interviewing and witness preparation usually allow the witness to sharpen his understanding of the meaning of the event and structure his testimony to convey it. It must be the witness’s conviction that ultimately structures the testimony, or the testimony will collapse under cross-examination.
Divorce And Cross-Examination
The methods of cross-examination stand in stark contrast to the heavily characterized, fully God’s-eye, narrative of opening statement and the apparently simple narrative of direct. It is the most prominent of the deconstructive devices of the trial. What opening and direct examination build up, cross-examination can destroy or profoundly reinterpret.
In any of its forms, the heart of cross-examination is the sequencing of short, clear, crafted statements that cannot plausibly be denied and which, in sequence, suggest an inference that supports, in one way or another, the cross-examiner’s theory or theme of the case. Cross-examination “questions” are statements. They do not seek information but rather serve to remind the judge of aspects of the truth of the situation that the witness has chosen not to reveal. Of course, this has significance for the judge’s assessment of the facts and also of the witness. Questions must be short because the assumption is that the witness disagrees globally with the examiner, wants to disagree. The questions are like watertight compartments on a ship: the examiner can lose one or two without total disaster’s engulfing him. Thus the attorney must keep each question limited to achieve damage control. Questions must be clear because the judge will and should hold ambiguity against the lawyer, and any ambiguity may fairly be exploited by a witness who, by the time cross comes around, is committed to a story now under attack. They must be as crafted as possible because they are designed to suggest a conclusion that the witness will resist. But the craft must not compromise the last feature of the cross examination question: that the witness simply not be able plausibly to deny the statement that each question contains. Finally, the entire purpose of the sequence of questions is to suggest to the judge a conclusion consistent with the examiner’s theory of the case.
The key to effective cross-examination is control. In contrast to direct examination, the lawyer is permitted in cross-examination to proceed in leading fashion. Control is central because of the purpose of cross-examination. Its premise is that the witness (or the examining lawyer) has made a more or less conscious decision to testify in a certain manner, that he has cut into the great booming, buzzing confusion of his own relevant experience and decided to testify in one certain way. He has decided which details to include and which to exclude. He has decided, within the limits on the form of examination described above, to describe a scene one way and not another, to tell a story one way and not another. He has told his story in such a way as to obscure the real significance of aspects of the story. He has failed to describe spatial and temporal relations in a full way. He has presented a story that has the appearance of completeness, that is “autopoetic”—it appears to fully represent the reality about which he seeks to testify. But it is not complete; or at any rate the purpose of cross-examination is to demonstrate that it is not.
After a successful direct, the deconstructive shock of an effective cross-examination can be stunning. While opening statement and direct examination are two different forms of constructed narrative, cross-examination is the first of the devices by which the trial deconstructs narratives. It is the succession of narrative construction and deconstruction, reconstruction and deconstruction, that lies at the heart of trial discourse. Deconstruction is the last word in the sequence because, I believe, it is rare that a judge will have accepted a complete narrative surrounding the events that have occurred. In a “triable case” there will often be large patches of uncertainty on past events. These patches are filled in by different sorts of (1) judgments of probability of purely historical events, (2) moral judgments, and (3) judgments of human and political significance. To anticipate, it is because judges are justified in saying they are unsure (by a degree of probability that is affected by the normative judgments concerning the importance of failing to find this rather than that, for this to go undetermined rather than that) that they can take a global moral approach to the case. In a well-tried case, there is often a large swath of this indeterminacy to be resolved, as we will see, through a practical-moral judgment, not a judgment of purely factual probability.
To the extent that judges feel justified in saying they just don’t know what the sequence of movements or the precise meaning of the events was, the judge may move into a sphere where the conscious relationship between factual and normative is undefined, where judgments of fact, of specific personal culpability, and of moral or general public significance relate to one another without full conscious control. Cross-examination can move a judge into this sphere by showing that a witness who has told a lucid, coherent, and complete story has made a series of choices based on more or less self-interested or casual assumptions. Even questions of fact are issues for choice, usually made in an interested way.
Cross-examination can shock a judge into understanding that there exists a series of (often unasked) questions the answers to which will transform the reliability and the meaning of a particular account. It can provide a judge with the experience of a radical reconceptualization of an account of what occurred, reminding them that, finally, they may rely only on their own assessment of what happened and how it should be judged. Ultimately, they must depend on their own insight and reflective judgment. Cross-examination may rely on alternative narrative construction. It may go over the same narrative terrain that the witness has traversed, but do so to exhibit the possibility of an alternative inference. This is relatively easy and can be extremely effective.
On cross-examination the choice of words is that of the lawyer, an incourt actor who has not taken an oath to tell the whole truth. More important, the lawyer’s framing of questions is not guided, as with an honest witness, by a recollection of events relatively independent of the rhetorical exigencies of the trial. In this regard, the witness’s language of direct embodies a weakness and a strength. The weakness is that it is not highly crafted with an eye to the issues in the case but is constrained by the memory of those “brutally elementary data” which, let us say, a novelist would omit. But this is also its strength, or may be if the witness demonstrates respect for “those things we cannot change at will,” so enhancing his credibility. Cross-examination has precisely the opposite strength and weaknesses.
It is obviously interested, something that a well-conducted redirect examination can show, and by conducting even the best cross-examinations, the lawyer shows herself a partisan. On the other hand, the cross-examiner has the novelist’s advantage of choosing the language of each “question” for full rhetorical effect, subject only to the requirement that the examiner’s statements not be subject to plausible deniability.
Sometimes the cross-examiner cannot retell through the witness on the stand the entire story from another perspective but will seek only certain limited admissions that are consistent with an alternative theory and which the witness consciously omitted. Somewhat relatedly, the examiner may multiply, often close to infinity, those things which the witness does not know or did not do. The suggestion, of course, is that the unknown fact, if known, ideally will (if there is other evidence of it) or at least could, radically change the understanding the witness has or the judge should have.
Second, cross-examination can more directly suggest facts or theories that provide explanations other than those suggested on direct examination. It may present to the trier of fact a series of additional facts that change the significance of the story the witness has told. It may show that the perceptual judgments made by the witness, what he saw the events as, are analyzable, in the best empiricist traditions, into more atomistic sense-data. Those could have been synthesized in some other way, an alternative perception. The examination may further suggest that this alternative perception was rejected, consciously or unconsciously, because of interests of one sort or another that the witness had in “seeing it his way.”
Third, the cross-examination may cast doubt on or qualify the opponent’s story. The examiner may ask himself the same question as would the attorney preparing for trial (“If this testimony is true, what else would be true?”) and then proceed to show that the consequences are false or implausible. Fourth, many of the most important cross-examinations are of witnesses who are also parties or important actors in the real-world events that have led to the trial. Here the most important goal of the cross-examiner can be to allow the judge to see, in apparent qualification of the general principle that the common law trial does not permit examination of a party’s character, the kind of person this is. Sometimes this involves simply gaining admissions from the witness about his or her own past actions and omissions in the real-world drama that led up to the trial, relevant perhaps only because they are “part of the story” that demonstrate one or another moral failure. Or parts of the direct examination can be reviewed in ways that show its inherent self-serving implausibility.
In what I call the “long cross-examination,” typically of a party opponent, the lawyer may simply require the opposing party to perform under circumstances where he is challenged with aspects of a situation he would prefer not to confront. How a person acts when he is not getting his way can be very revealing, especially when what is being challenged is the story he actually tells himself. Fifth, and somewhat more subtly, the witness can be asked questions the very answers to which reveal relevant dispositions. A witness can successfully navigate cross-examination if the factual and moral judgments he brings to the stand are sufficiently definite that they enable him to resist the impulse to say what appears advantageous under the shifting rhetorical grounds of cross-examination. This is very difficult for a witness who is a party or who believes in the justice of a party’s cause. Sixth, there is available to the cross-examiner an entire repertoire of methods of “impeachment,” the devices for undermining the credibility of the witness. These will attack his original perception, his memory of the event, his sincerity in swearing to tell the whole truth, the clarity of his mode of expression, and the ways, often subtle, in which these interact with each other. The examiner may draw admissions about the witness’s meager opportunity to observe because of lighting, brevity of time, confusion of the circumstances, his own fear, or significant distraction. His memory may be challenged by the examiner’s eliciting admissions about the length of time that has elapsed or the similarity of this incident to many others with which he may be confusing it.
The examiner may question the witness’s sincerity by eliciting admissions concerning his affection for a party or his reasons to despise the opposing party. His attitudes toward the racial or ethnic groups to which a party belongs may be exposed. Any prior statements or actions of his that are inconsistent with his trial testimony may be explored. Any errors in his trial testimony, even on inconsequential matters, may be revealed. The witness will be required to reveal any conviction involving false statements or dishonesty, such as perjudge.
Often the same persons are both witnesses and parties. Though a different set of rules applies to the impeachment of witnesses than applies to evidence probative of the alleged actions of parties, no judge is likely to distinguish sharply between the credibility of a party as witness and the deservingness of a witness as party. The exclusive moral rule of the relationship between the witness and the judge is one of truthfulness. A judge that believes it was mistreated by a party, prevented from doing its duty, will be inclined to think badly of that party. The judge knows, too, that a person’s attitude toward the simple factual truth, his accuracy or fairness, is not a bad indicator of that person’s fairness in general, his willingness to subject his own desires and projects to a standard beyond them, a trait that we generally call “decency.”
The structure of the trial itself elevates the importance of witness and party credibility. For as the trial progresses through plaintiff’s rebuttal case, and sometimes defendant’s surrebuttal, parties are limited in presenting evidence that attacks or qualifies. The trial itself easily becomes the moral event to which the judge responds. Of course, much more could be said about cross-examination. It is one of the most fascinating of the rhetorical arts. But it can fairly be said that its general purpose is to allow the judge to look through the narratives of the witness’s direct examination. It is a method to break the selectivity, the willfulness, the manipulativeness that inheres in self-interested storytelling, or perhaps in any story told by men or women. In conjunction with the other devices of the trial, it may serve to reach toward a truth that lies beyond storytelling.
Cross-examination can reveal other possibilities that, once identified, become, in light of all the evidence, more plausible than the one suggested. It may reveal not another factual possibility but a personal reality, in the way in which a witness who is also an important real-world actor performs an important public duty, the duty to tell the truth at trial, where the judge is relying on that truth in a matter of public significance. What a witness takes to be the “whole truth” of a situation says a great deal about who that witness is. When the judge imagines the events that have led up to the trial and casts in that real-world drama the particular people whom they have come to know as witnesses, the significance of the case may well be altered deeply.
The constitutive rules of the trial elevate the importance of a past event. But they cannot elevate the importance, the significance, of that event, which can be reached only through narrative, over the importance of the way witnesses actually tell their stories. For the trier of fact, the undeniable reality is the trial itself. The trial’s the thing. The fairness of the way in which witnesses testify is often the actual basis for the judgment.
Divorce Closing Arguments
In opening statement the lawyer provides a full narrative of the events that have brought the case to trial, a God’s-eye account. That account has the internal plausibility that comes from structural elements of the story, its consistency with factual and normative common sense generalizations, and it should invite the judge to finish the story so that the dimly perceived harmonies of the moral world are restored.
By the time closing argument begins, each lawyer cannot but be aware that the enabling simplicities of opening have largely disappeared. The “vivid and continuous dream” is only a memory, now more distant than the patchy and ambiguous presentation of events that has emerged in the evidentiary phase. The judge has now seen the case from innumerable perspectives, and the lawyer’s task is to coax the judge back into seeing it sufficiently from his perspective, into accepting his “theory and theme” just enough that they will be prepared to act in precisely the way that the advocate urges. The closing argument is the time when the lawyer will address directly the difficult relationships between theory and theme, on the one hand, and the evidence, on the other. In the most effective closings, he will directly and reasonably deal with the inevitable factual and moral difficulties that a triable case presents. He will be both reconstructing the narrative he provided in opening and deconstructing the narrative offered by his opponent. Occasionally he may present a compelling argument; much more often he will be more than pleased to have discovered an appealing argument.
And to anticipate the later chapters, in closing the lawyer is moving between the significance of events and their truth.
Most basically, the advocate will “argue the evidence.” Here he moves beyond the theory and theme struck in opening, to argument that the evidence presented in their support is believable. Here there is a rough hierarchy in the relative strength of supporting evidence: admissions are the strongest, the opponent’s failure to dispute evidence is next, followed by a strong basis in common sense and experience, with arguments about relative credibility of witnesses at the bottom. It is argument because of the employment of a range of devices that, in quite different ways, urge what we might most broadly call the relative strength of the advocate’s position, now on the axis of truth as well as the axis of significance. Thus the advocate may explicitly draw conclusions or inferences from the evidence presented that serve to demonstrate the truth of his theory of the case. He may carefully assemble a range of supporting detail that has been scattered intentionally throughout the case and whose significance may only have been hinted.
Because closing is the final engagement in the battle for the judge’s imagination. A theory is accepted or rejected as a whole, both sides will be careful to stay “within” their theories and themes. Even the plaintiff’s rebuttal argument will be organized according to the structure of his affirmative case. Even the defendant, after an initial denial of the plaintiff’s or prosecution’s claims, will almost always move quickly to reconceive the case from his own perspective. Part of closing argument will be devoted to a small number of crucial “turning points” in the case, those key issues which, once resolved, cause everything else to “fall into place.” Trial lawyers know that these issues are not purely factual. And so, especially in the rhetorically most important moments of closing, the beginning and the end, the advocate will focus on “making the judge want to decide the case in your favor.” He may invoke the judge instructions at this time or he may revert to narrative—retelling a portion of the full story he told in opening, perhaps at a higher pitch of descriptive-evaluative intensity.
Closing is argument as well because of the advocate’s ability explicitly to address and directly to criticize the opponent’s inferences, analogies, theory, and theme. In this mode, closing argument is, like much of cross-examination, a deconstructive device, in two different ways. First, it can attack the internal coherence, both factual and normative, of the opponent’s case, arguing usually that both the factual generalizations and the normative principles on which it is built are crudely overgeneralized and misstated. Second, it can attack the relationship between those generalizations and principles, themselves unassailable, and the evidence that this case falls within them. (Here the advocate may directly urge the lack of credibility of the opponents’ witnesses, their motive to lie, and their untrustworthy demeanor while testifying.) Here the advocate can say of his opponent’s opening, in effect, “Pretty story, but it just isn’t true!” That opening was the lawyer’s promise to produce evidence to establish the important assertions she made. The trial shows that the promise has been broken!
It is worth anticipating here the complex ways in which the few rules surrounding closing situate the trial in a web of public meanings. It is the lawyer, not the client, who addresses the judge. He is prohibited from directly expressing his personal opinion on the justness of the cause or the credibility of the witnesses. He must accept the law as given in the instructions and may not paraphrase that law, misstate it, or urge the judge to disregard it. The analogies, allusions, and stories he tells in order to make both factual and normative arguments are all drawn from the judge’s common sense. The advocate is prohibited from addressing a judge by name or from urging the judge’s self-interest or lessening the responsibility the judge bears by mentioning the possibility of appeals or of commuted sentences. Closing dramatizes the transformation of private desire into public right. When “I want” becomes “I am entitled to,” the claimant must submit to the complex public norms by which the latter claims are determined.
Just as in opening, the advocates in closing almost inevitably and performatively pose for the judge metalevel issues concerning what is important about the lawsuit. The trial is constituted as a “consciously structured hybrid of languages,” each quite different from the others. Together they build up an enormous, almost unbearable, set of tensions of different kinds. Both lawyers – the Plaintiff’s and the Defendant’s must locate the most powerful norms, from any source, that support the client’s case, and demonstrate how those norms are what this case is about. The trial is the crucible in which what is most important about norms and facts is determined.
The law of evidence contains the most obvious set of rules that make the contemporary trial what it is. More easily overlooked, especially by scholars whose principal interest is the extent to which the law of evidence promotes or hinders accuracy in fact-finding, is the pervasive effect of the law of professional responsibility on the trial. Just as surely as the law of evidence, legal ethics, both as a set of precise disciplinary rules and as an expression of the ethos of the practicing bar, forms a decisive part of the constitutive rules of the trial. Someone who is interested in answering the question “What is a trial?” cannot leave them out of account.
In Service to Client Autonomy
First, except for the special case of the prosecution in criminal cases, the client decides whether or not to proceed to trial. After all, a “divorce lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter.” (The office of the prosecutor has unreviewable discretion not to file or to decline to prosecute a criminal case. A settlement in the form of a plea bargain must be approved by the judge.) This decision is a corollary to the lawyer’s duty to “abide by a client’s decisions concerning the objectives of representation” and to “consult with the client as to the means by which they are to be pursued.”
But the client’s right to set the objectives of the representation reaches decisively into the trial itself. Concretely, those objectives will often determine the opening statement that the lawyer gives, where the crucial “theory of the case” is presented. For example, a mentally competent criminal defendant charged with first degree murder may decide that his primary objective is to avoid indefinite detention in a state mental hospital. He may well decide, after consultation with his lawyer, that the goal of the trial is to obtain a conviction for involuntary manslaughter and a relatively short prison sentence, most of which he may already have served awaiting trial. What his lawyer says “is the case” in opening statement will be a function of that client goal, as will all the evidence presented, the way it is organized and shaped.
It is the client who chooses. The lawyer’s task is to protect the client’s autonomy from the threat posed by the complexity and alien nature of the legal system. If the choice is to litigate, to go to trial, the lawyer becomes less the philosopher and more the fighter, or at least the very single-mindedly loyal diplomat. He or she puts partisanship, fellowship, competitiveness, and ambition at the service of presenting the most morally and factually compelling version of a client’s story. Or perhaps as one may say “position,” because the narrative will be the result of a set of conversations in which the story that the client claims to be true is confronted by the lawyer’s judgment about what is factually plausible and morally compelling. The result of this effort is the presentation of a case imagined and researched with the care that only the most delicate conscience and rigorous intelligence could muster. Thus a trial advocate may and often must make the most impolite or embarrassing suggestions, even if they are offensive to the powerful. By the law of professional responsibility, the client’s interests supersede every code of silence.
But there are limits. Those limits contribute to the powerful tensions that pervade the trial.
They respect “those things that man cannot change at will,” and ensure that the trial is not only a political event. A lawyer may not herself make a false statement of material fact or law in the trial court. Nor may a lawyer offer evidence that he knows to be false. If a lawyer has offered evidence that he learns to be false while the action is still pending, he has a duty to “take reasonable remedial measures.” The most dramatic example occurs when the lawyer’s own client has testified falsely and refuses to correct the false testimony. In the civil context, and probably in the criminal as well, that includes “disclosing the existence of the deception to the court or to the other party,” even where the source of the lawyer’s information is a confidential communication with the client. There are difficulties surrounding “what a lawyer knows,” but the authorities address that problem with a common sense that tries to avoid sophistry, on the one hand, and a too-cavalier readiness to find a client, especially one charged with a criminal offense, to have committed perjury, on the other. Nor may a lawyer “counsel or assist” a witness, including a client, to testify falsely. Once the lawyer knows that potential testimony, however helpful, is false, he may not offer the testimony or prepare the witness to present it effectively. Even if he only “reasonably believes” the evidence is false, he may choose not to offer it. A client or a witness may have consciously or half-consciously manufactured a distorted story based on a misunderstanding of the legal standards. For this reason, or in order to motivate a client to remember important details, a lawyer may be justified in explaining the legal issues. Furthermore, the processes by which a lawyer can reconstruct events from a limited memory bear a close resemblance to those by which he can construct events—both involve the use of imagination and common sense to determine the probable course of events. When reconstructing events, the lawyer bothers to inquire seriously whether that is actually the way things happened; when constructing events he is concerned only whether the story is plausible and not obviously inconsistent with other credible evidence.
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