The 80-20 Principle and Tips For Drafting Pleadings
and Making Better Presentations In Family Court
I had the honor to participate recently in a workshop for the Family Law Section of the Desert Bar Association, together with Indio Judge Dale Wells and a retired family court Commissioner. It was loosely inspired by a Blog entitled "Pointers for Dealing With Family Court Judges (Difficult and Otherwise) - What Every Lawyer and Pro Per Should Know!" I wrote in June of 2011. That in turn was inspired by a workshop presented by Canadian jurists Carole Curtis and Roselyn Zisman at the June, 2011 AFCC Conference in Denver, Colorado. I've added some tips to their work by introducing a concept known as the "80-20 principle," based upon a book so titled by Richard Koch.
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The 80-20 principle is an underlying pattern in human affairs first noted by Italian economist Vilfredo Pareto a hundred years ago. His focus was the distribution of wealth in 19th century England and Europe, and he found that there was a consistent mathematical relationship between the percentage of financial "haves" and "have-nots" among the total population and that 20% of the people enjoyed 80% of the wealth.
Later thinkers have generalized the theory to every aspect of human endeavor, and it has huge implications for our law practices. For instance, if 80 percent of "results" come from 20 percent of "inputs", this suggests that 80 percent of our efforts have only marginal (20 percent) impacts - we waste a huge amount of energy and resources when we lose sight of the forest. Considering this concept in the context of our legal writing, argument, and presentations, it suggests that we are often hugely inefficient and that we fail to pinpoint the important facts and arguments that may persuade the court by hiding them within a sea of relative irrelevancies. Not only does this increase our client's attorney fees, distract the attention of our bench officers (and even generate avoidable frustration), but our lack of focus can diminish our own professional satisfaction and artfulness.
If 80 percent (these percentages are not hard and fast rules, but metaphors for patterns of imbalance that range widely) of our efforts affect only 20 percent of outcomes, then the principle suggests that with a little attention we can reallocate our resources to make our winning points more productive, and expend less energy telling the court about things that matter less, or little. One way to begin is to ask ourselves, in drafting a declaration or Points and Authorities, for example, "what is the 20 percent that is going to lead to the 80 percent?" This inquiry is particularly important now that many courts are strictly enforcing CRC 5.118 in terms of a ten page cumulative limit for all declarations submitted in support of a Request for Order - some judges interpret it to mean that the total number of pages in moving and responsive paperwork cannot exceed ten pages per declaration, and others ten pages overall (and five pages for Reply Declarations).
This concept is more true with oral presentations, since our time for making our most important points is even more limited.
In terms of effective advocacy, here are a few highlights and suggestions with regard to pleadings and presentations in his courtroom:
• Think HEADLINES in your declarations and points and authorities.
• Remember that the Court too is governed by the 80-20 principle in terms of the time judges have to devote to each case. This means that some judges of necessity are scanning the pleadings rather than giving them a deep read, particularly with lengthy paperwork. As a practical matter, many scan, read what catches their attention as particularly important, and then scan some more. Judiciously bold words or phrases that you want to draw attention to. Don't bold every point, or the value of the emphasis gets lost. (Careful, everything feels important to you).
• Do not use all CAP'S, except possibly with HEADLINES. [Okay, I.m trying to demonstrate the point too much].
• Remember that many courts have gone paperless, and consider how a PDF may appear to the reader, particularly in terms of legibility. Documents you fax file with the court clerk are scanned into the database upon receipt. This may make the PDF difficult or impossible or read, particularly with exhibits like paystubs that often are already very light. Try photocopying them and then look to see if you can easily read them - if you can't, how would you expect the judge to? A better practice is to fax file your pleadings directly from your computer, as opposed to your fax machine. This is particularly true with certain types of exhibits, like colored photos. Indio now has a color fax machine.
• While 12 point type may be the minimum acceptable size, you can use larger fonts and styles, and you might want to. You want your paperwork to be easy to read! Unless you are already running short of space, try 13 point font. Times Roman may not be the most appealing type to use. Make your pleadings look tight and professional. It implies a quality analysis.
• Be careful about attaching different documents or judicial council forms to other documents. What the court will see on their computer screen is the title of the primary document, and the court may be unaware that you've provided the attachment - or, at a minimum, the court will have to hunt for that attachment. Possibly attach a captioned cover sheet for documents or attachments that you want to draw special attention to. Examples include the FL-420 and the FL-157.
• Attach Xspouse calculations, along with the inputs that you think the court should use. Similarly, Propertizer marital balance sheets can be very useful to the Court.
• Consider using the court's ELMO projectors. Studies have shown that 85% of audio-visual presentations are retained by the audience. I suspect that a self-represented party who did this would blow most judges away.
• According to Judge Dale Wells, "the best lawyers I see are the best storytellers." Make your presentation engaging. All judges appreciate that.
• Ask yourself, "if I was the judge, what would I want to know?" What is it you or your client wants, and why? Using the 80-20 principle, boil your story down to five minutes for presentations (obviously depending on what type of hearing is involved). Use headlines when talking to the court, just as you should in the pleadings.
• File your exhibits separately from your declarations and P's and A's. Bring a set to court for the judge, opposing counsel or other party, and possibly for yourself. Remember that if you intend to examine a witness, they can only be shown the actual exhibits that are being introduced into evidence or lodged with the court. This may require you to bring three additional sets. Consider having the witness authenticate the exhibit, and then place it on the ELMO.
• Pre-mark your trial or evidentiary hearing exhibits - otherwise, you may find your are using up your allotted time. Judge Wells in particular uses a chest game timer to limit each side's time, and to force them to get to the core of their matters.
• Alert the Court to contra legal authorities. You may get away with failing to do so once or twice, but after that your reputation with the court will be toast - either you didn't do your homework, or you are trying to pull the wool over the court's eyes.
• Be very careful with ex parte applications. Court are increasingly sanctioning attorneys and parties for improper applications. Importantly, if you've waited weeks or months to seek relief and now a "crisis" has arisen, your delay does not create the "emergency" and doesn't justify an ex parte request. Ask yourself whether the supposed exigent circumstances are the fault of you or your client. Read Mission Power Eng. Co. v. Continental Casualty Co., (C.D. Cal. 1995) 883, F. Supp. 488, 492. You will likely be sanctioned if you ask the court to do something that it cannot, like seeking an ex parte change of custody which is clearly severely limited by Family Code section 3064.
• Ex parte's for OST's (orders shortening time) may not get you into trouble if they have a legitimate justification. Again, did you wait to the last minute?
•Do not argue outside the evidence, and understand that the courts are not going to be pleased with attorneys who pander to their clients by blurting out stinging barbs against the other party or opposing counsel. While it used to be that some attorneys seemed to get away with this under the guise of "it's just argument, Your Honor," Judge Wells will not be favorably disposed towards such conduct and intends to cut if off before the other side feels that he or she must respond in kind. This applies to self-represented parties too.
• We are on notice - the Courts will impose FC section 271 sanctions for good cause!
These are just a few of the workshop highlights. Those who attended made a very wise choice and gained other valuable "secrets to success" and insights, and for them the 20% of their Saturday that they invested will pay 80% dividends!
If you have some of your own tips, I invite you to comment to this Blog and so share them with us all!
: @ )
~ T. W. Arnold ~
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