A Trial Lawyer in Court

Image from “Mrs. Nelson’s
American Government”

Like directing a play

By James T. Carney, Attorney at Law

I was recently involved in a case that well illustrates what trial lawyers do. The case had to do with the Employee Retirement Income Security Act (ERISA) of 1974, and included a good deal of esoteric discussion about ERISA, which I won’t bore you with. The case in question boiled down to a brass and knuckles fight over whether or not a couple who divorced after having been married in a religious ceremony had subsequently reunited in a common law marriage.
    I represented the wife, whose story was that they did get married again under common law, had two kids, and represented themselves as being married for 20+ years, etc. The husband’s story was that they simply got back together and, because the wife was telling him that their divorce had never been finalized (a misrepresentation), continued on in the relationship.
    When the husband retired, his pension fund required him, as a married individual, to grant his wife a co-pensioner annuity, which would significantly reduce the amount of each pension payment. A couple of years later, he complained about the cost of the annuity to his sister, who told him she thought his divorce was valid.
    Encouraged, he hired an attorney to confirm that the divorce had been finalized – it had. The husband then claimed that because he had been divorced, his pension plan should have granted a single-life annuity. His focus in this case was to establish that he did not know he had been divorced, he had never intended to get remarried, and he had been living his life under false pretenses.
    His former employer’s benefit plan then sued him and his wife, claiming that if they had not been married, they had defrauded the plan of a great deal of money. The wife’s defense was that they were in fact remarried, at common law, and she was therefore entitled to the medical benefits she had received.

Arguing a case is a little bit like directing a play: the performance has to have a theme. Now, the theme that I stressed in this case was that the husband was an inveterate liar who had invented this incredible cover story so that he could get a single-life annuity, which he could not get unless he was divorced. To establish this theme, I offered evidence to show that at the time he really believed he was marred he nevertheless falsified his application for pension to claim he was divorced. Since, like most liars, he often exaggerated, I exhibited contradictions between his testimony in deposition and his testimony at trial – for example, at trial he claimed his wife repeatedly told him that the divorce had never gone through, whereas in his deposition he said she told him only once. I also had testimony both from his wife and from her best friend that contradicted his claims. The friend had asked the husband when the coupled reunited what he intended to do, and he had told her he would be a better husband this time and a better father to his child than he had been before.
    My opposing counsel seemed to think he’d won the case hands-down, although he recognized that my client, who had been abandoned by his client and was now cleaning houses and raising the two kids born after the reunion, was a very sympathetic person. I wasn’t sure that I had won, but I thought the odds were in my favor.
    My view of the case proved to be prophetic and we won an overwhelming victory. To quote Senior Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania:

After careful consideration of the parties’ representations, and for the following reasons, the court finds that Lisa demonstrated by clear and convincing evidence that she and William entered into a valid common law remarriage in October of 1993.

    The theatrical side of a court case should not be overlooked. As a lawyer at trial, I really am a bit like a director trying to tell a certain story, and my success depends not only on the substance of the story, but also on the competence of my presentation of the story. In my view, lawyers do not – by and large – win cases, but they do lose them. At least, I can remember more cases that I lost than cases that I won by following my strategy. What I try to do as a trial lawyer is to present the facts so that the trier of the facts will find them credible and rule in my client’s favor. In the last analysis, the facts win cases, but if I do a poor job presenting the facts, my client may lose.

Copyright © 2020 by James T. Carney