Transcript

Jerome Stein: It’s really important that the other side knows that you’re prepared and that you’re not, again doing a slapdash job. And it’s true. The strategy, if you have the strategy from the beginning, you can implement that strategy all the way through.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today, I’m excited to welcome Jerome Stein to the Texas Family Law Insiders podcast. Jerome is a mediator and litigation strategist, the latter largely a creation of his own making. Jerome practiced family law and civil litigation for 35 years. Like mediation litigation strategy hopes to help lawyers see a case with new eyes, and to approach each aspect as an opportunity to institute strategy. Thank you so much for joining us today.

Jerome: I’m so honored to be with you.

Holly: So why don’t you tell us a little bit about your background.

Jerome: So I started practicing law in 1984, which sounds like the ice age now. And I was in a real estate firm, primarily real estate. And we, but we also did a general practice and we had a fee office for a title company. And early on, I got a family law case, which I found really interesting. And I wanted to focus on that. So I left that firm, opened up my own practice, made no money at all in 1986. Um, but you know, when you open the door, family law, is what comes in, right? It comes through that door a lot. And I grew to be more and more interested in it, partly because we’re really affecting, in family law, people’s lives, in a very direct way. And it’s really the most personal way you can affect somebody’s life and help them.

So I was in a variety of partnerships over the years. I didn’t have time to get board certified because I was too busy working, which is a poor excuse. But and, and, you know, the practice takes a personal toll, as you know, and as many people know, it takes an emotional toll. And I suffered from some personal problems and depression. And so along with that, there were some issues with the bar, and I decided, you know what, I’m going to bow out for a while, agree to have my license suspended and do something else.

And so I started doing some paralegal work, which was okay, because it’s not your problem anymore, right? You’re just trying to, or so you think. But you worry just the same amount as you did when you were practicing. And Holly, interestingly enough I was working on a case just after C.J.C came out. And I mean, like a month after it was published. And it was a case regarding a woman who had a child with a married man. And the married man and his wife had the right to determine, oh not the wife. She didn’t have any rights. But the married man had the right to establish the domicile the child.

But our client, I was working with Vicki Alexander, our client was named a joint managing conservator. So I said, you know, Vicki, what we really had to do in this case is we’re strategizing. And I think I’m gonna call myself a litigation strategist. What do you think of that? And she said, yes. Because the idea was, well, how are we going to approach this case, right? How are we going to approach it differently? What strategy are we going to put in? What logistics are we going to use? Because logistics are the next step after strategy? And I thought that because this woman had been named a joint managing conservator.

And this was, of course, very new in the process. You were the pioneer. She was then assumed to be a fit parent, right. And everybody had agreed. Well, father dies, he was much older than her. And his wife just fails to notify my client that, hey, your child’s father has died. And so this woman wanted custody. And my client, our client, Vicki’s client wanted custody. And therefore, we fought we filed, I thought, what’s the best way to approach this and we decided that a summary judgment would be the best way to approach this, if that makes sense. Because I was gonna say there was a presumption that she was a fit parent.

Now, I don’t know what you think about that. The judge had some difficulty about that. And to tell you the truth, I don’t know what’s happened with the case since that time. But I’ve been, you know, I haven’t gotten an answer as to what happened on that case, and at the time. But, you know, we have to think about how we’re going to achieve our objective, right? What are we going to do to achieve our objectives. And I’ve seen so many people in the courtroom and we’ve talked to so many people who just seem to go pell mell. They don’t seem to have a plan. They don’t seem to develop the evidence, right? They just argued something. They don’t have the law behind them. They don’t know what the law might say.

And so I kind of thought, you know, this is a way I can serve people, that there’s got to be a need for this. Because some people are searching for that advice. And mine is not a service that I want you to take, use forever and ever. I think at some point you that you can be able to do this on your own. But what litigation strategy does, or what I as a litigation strategist I’m doing is from the first step of a case, or just take a piece of a case, but from the first step from a case, develop a strategy, even before that client walks in the door, right? Can this client afford our services? That’s important, right? I mean, I’m sorry, it’s a sad truth.

But we have to feed our families, and we have to pay the mortgage. And every, you know, lawyers have to do that. That’s what you have to do. Do we want to work with this client? And does this client have a cause of action, for which we can help them get some relief? Not everybody who walks in your door is entitled to your services. And, you know, lawyers don’t often know what their paralegals and the receptionist and everybody else in the office is dealing with? How difficult client or how fantastic a client can be. So we take it from that very first state and move forward, if that make sense.

Holly: Yes, you know, I think that’s probably an often overlooked piece of the puzzle, where my personal practice has, or my life has improved dramatically, once we really focused on that intake piece. And, you know, how do we determine A if our firm is going to be a good fit for this particular client? And B, do we want this particular client? Because let me tell you over the years, there have been plenty where I wish we would have figured it out sooner that we did not want that particular client.

Jerome: Right, and sometimes you say, well, I really could use that $5,000 retainer that would really help us go for a month, right. Even though, you know, right, often, you know, you feel in your gut, I don’t want to deal with this person. Right? Just their trouble. I can tell the trouble. Or I don’t want to be the fourth lawyer on this case. Not a good plan. Never a good plan, right. So that’s what, that’s you know, so we take it from that place.

Holly: Okay. So as, in your role as a litigation strategist, client’s already been retained, and now they’re going to file for divorce, or they’re going to have this modification or whatever the case may be, what is your role then?

Jerome: So my role is to say, okay, what do we need, first of all, to find out? What will, say it’s a modification, that’s more complex generally than a divorce. Well, that’s not true, either. But, I mean, because divorce can be complicated. But in terms of the law, with regard to modifying, say, okay, and getting temporary orders, if we want to get temporary orders in a modification, what is the law going to allow us to do? Is there a case law that directs us to remedy that will favor our client? What does statutory law allow us to do? And I think of the statutory law as the Bible, and the case law is the commentary, right?

So if it’s developed everything, you developed everything I’m going to keep on singing your praises here, because I mean, you’re, you’re a revolutionary. So, um, so we kind of we start looking at the law. Okay. So when figuring out what the law allows us to do, then the very next important step is discovery. Right. And discovery, aside from I think the mandatory disclosure answers have to be clear and complete and as detailed as you can make them without giving away the store. If you know what I mean. You need to, I try to help people customize their interrogatories, admissions and request for production because so many times we see discovery wasted, right?

Like, it used to be when we could ask, when we ask for tax returns. And people will say, produce all the party’s tax returns. Well, what would you say? There are no party, the parties don’t have a tax return, right? They’re divorced, right? Post divorce, this is a modification. You just wasted your discovery. But you want to make sure that your discovery, we do too many path form, items of discovery, we need to customize them to the case that we have, okay.

Holly: And definitely a lot of attorneys will just use the, you know, forms that get spit out by WES forms, or tech sauce, or whomever. And oftentimes, the attorneys aren’t even looking at it. Their paralegal is drafting it, and it’s going out, and they’re very cookie cutter, or they’re very, you know, every single person that doesn’t customize their discovery sends out the same stuff.

Jerome: Right, right. And you raise something important, because I think that your paralegals and your support staff need to be part of this process. Because you want them to be able to start customizing discovery, and think creatively. They certainly have the talent, they keep the lawyers in check, they should be able to keep the cases in check. And the attorneys always, it’s your name on that document. It’s your bar card number, believe me, I understand that. You have to be sure that it’s something that you are proud of sending up.

Holly: So circling back to kind of what your role is, as a litigation strategist, we were going through discovery customizing it, what, where do you go from there?

Jerome: Well, actually, say we have a temporary orders hearing, right. And if you’re in Collin County, you’ve got 20 minutes per side, right? Generally, yes, you get 20 or 30. Yeah, right. Okay, 20 to 30. How are you going to use that 20 minutes, because that 20 minutes, is going to set the course, for your entire case. Or at least for a while, right? So you need to determine number one, who are our witnesses going to be or our witness, because we want to have some time to do some cross right? What questions are we going to ask? And let’s make sure our client is prepared. Right.

So my role there is to make sure that we have whatever evidence we have at this point, the client has, the attorney has at this point, develop that evidence, hone it down to those 20 minutes, and get the right questions and answers out, right. And that makes the you know, you have to be really, really prepared to do that. And we need to make sure that lawyers are prepared to do that. So I’m going to spend that time, you know how we do witness preparation, I went to lawyer preparation and say, that’s a wasted question.

You’ve got 20 minutes, cut it down. Cut it down. Because one second is meaningful, in a 20 or 30 minute hearing, right? So we want to make sure that you are presenting the most important evidence and evidence is the key, not arguments. The most important evidence that you can to the court. And so we’re gonna spend some time on that.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: Yeah, I think it is definitely an art to be able to put on a rock solid case in 20 minutes and get to the point knowing when to cut your witness off when they’re rambling. Knowing which questions are important and which questions aren’t and kind of starting with the most important one so that when things take longer than you thought what you’re losing is not going to kill you.

Jerome: Right. At the same time, you have to make sure that at that level, your client has reasonable expectations, right. So because they’re life is depending on it. So they have to have reasonable expectations and make sure at that time that you’re working with the lawyer to manage the client’s expectations, because just spraying a bunch of stuff out there to make them happy goondas I guess pixie dust to make them happy is not going to help them in the long run. Now, another thing is you’ve got to manage your calendar, in helping a client. And so as much as a lawyer can, we need to help them manage that calendar, which means don’t have three hearings on the same morning and leave to clients stamping their feet and getting nervous and wanting to leave because you’re not there.

And sending a paralegal over to say, oh, Joe will be there in five minutes. He’s tied up in another court is not helpful. So let’s deal with that. And some people need to be trained on managing their calendar, because they’ll just say, oh, whatever day you want, judge, that’s okay with me. They’ve got four other cases set on that day. And you’ve seen judges who get irritated, we know the lawyers who overburden their calendars all the time. And we see how judges react to that, right? Because they’ve got a lot to balance, too. They’ve got 10 cases on their docket this morning, they can’t sit around waiting for you.

So then we have to do the same with mediation in terms of managing the client’s expectations. Being prepared for mediation, you have to be prepared, what does prepared mean? You need to know the facts of your case, you need to know the law that supports your case, you need to prepare your client for that case, you need to be focused for that mediation. I’m going to write about this in my next newsletter. If anybody wants to copy of it, they could just let us especially hopefully, everybody’s a member of the Texas Family Law Facebook group, because I think that gives us a lot of guidance on a lot of times.

So we need you to do the same thing with regard to mediation. Make sure you know what the facts of your case are. Everything, including your clients children, where they went to camp last year, where they’re going to school next year, how long have they lived in their house, make sure your client is aware of the mediation process. It’s frustrating. It’s nerve racking, it can be upsetting all those things, you know. So it’s very important that you know, because hopefully, you can resolve the case at the mediation stage. And you need to be just as prepared for mediation as you do for trial.

Holly: Well and I think having a good litigation strategy from the beginning, and setting those reasonable expectations, and being prepared all the way along, should help your case settle. Because A your client is going to know what’s reasonable and what to expect, and B the other side knows you’re prepared.

Jerome: Right. Right. Absolutely. They need to know that it’s really important that the other side needs knows that you’re prepared, and that you’re not, again, doing a slapdash job. And it’s true. If you have the strategy from the beginning, you can implement that strategy all the way through. And here’s another thing you need to do that I like to do at the very beginning. I’m gonna jump backwards, if you don’t mind. I think it’s a good idea at the beginning of the case, and as you develop a case, to do propose findings of fact and conclusions of law, because then, you know, what the factual background is. What do I have to prove? And what do I get? What do I have to prove? What evidence do I have to present in order to win my case?

Holly: That’s interesting. That’s, I’ve never done that before. And I think I don’t think about it until we’re looking at it in appeal. And at that point, I’m thinking, and I usually didn’t handle the trial when I’m doing looking at it at that stage, but man I hate findings of fact and conclusions of law, but maybe I might like them, or if I thought about preparing them early in the case, instead of just when we’re doing an appeal.

Jerome: Right. Because then you can know, the long picture. You know, there’s a better phrase than that. But you can know what’s on the you know, what’s on the horizon. And you’re gonna adjust those findings of facts and conclusions of law as you go on likely. Another thing is, we need to know what the court’s policies are beforehand. So do they need notebooks? Do they want your exhibits on a on an I was gonna say floppy disk. Can you believe that? Yes, on a flash drive. You know, how do they want it? How long do you have if it’s a jury trial? How many, how much time you’re gonna get?

So you know this even before you go to a pre trial, so you know what the court expects you. So you can do your notebooks as early as possible as you can get them developed. So you can have a plan, because you don’t want to go there and say, oh, this is not what the court, this isn’t what the court wants. And you don’t want to be drafting up a witness list on the day of trial, which I’ve seen happen, too. Right.

So as much as you can do and then you know, number one, what’s going to please the court. Because if you say, please the court and the court says no, the court is not pleased at all. We can have a much smoother ride. So and you’re much better, organization is so key. And how every new, whatever works for you in terms of organization, you need, people need to be organized. So I’m going to help people develop that as well, their plan of organization.

How are they going to have their exhibits available to them? How are they going to have their witnesses available? Preparing their witnesses. It’s not rocket science. It really isn’t. It’s, but we often like, like you said during the introduction, we look at things differently when it’s too close to us. If I’m another set of eyes, and those other set of eyes can be useful to you. As in mediation, you just, I never thought of it that way, right?

Holly: Yeah, definitely, you can get too close to the case, you can get too personally invested and you don’t see things the way that a judge will see them. Those of us that have larger firms with other attorneys, we have people that we can bounce those things off of who may not really know the case, or may not be personally involved. But for someone who’s a solo, or in a small firm, it’s really valuable. If you can have somebody who can listen to your opening and closing, look at your, you know, see what your evidence is and give you feedback on what works and what doesn’t and what’s important.

Jerome: Absolutely. And when you get to trial, you need to have prepared your opening. If it’s a jury trial, you need to have worked on your voir dire. You need to know how a jury is going to be seated. You need to check with court or the bailiff. I mean, I’ve been in some courts, we never have jury trials. I don’t know how that works. But you need to know how the jury is seated, who’s going to be number one, who’s going to be number 40.

You need to know as much as you can and you need, you cannot go off the cuff with an opening or closing. And you cannot go off the cuff with the voir dire. You just can’t. You need to have a plan. Now, you’ll get interesting questions, or you’ll get interesting answers to your questions. But you should have a plan, you shouldn’t be able to anticipate some of that. So you’d have a plan as to how to answer those.

Holly: So what benefits could our clients expect to see if we focus on litigation strategy?

Jerome: Well, I think they can look to see somebody who’s prepared. Somebody who knows their case, somebody who knows the law, somebody who is ready to go to bat for them. And that’s what impresses clients, don’t you think. That they know that they have somebody that is prepared as they can be and is seeing the long game. Need to see the long game and we’re showing them that we know the long game. And it also will benefit the client because they will be getting advice based on that experience of litigations, of working with a litigation strategist.

Holly: So why should attorneys consider bringing in an outside litigation strategist?

Jerome: Well, let’s say you’re new to the game, right? You’re, you haven’t practiced for a long time. It helps them in understanding what to do. And I mean, it’s just basic, it’s building the roadmap. If you have a complex case, you might want to have some help with what way you should do the research. Somebody who has had experience with a lot of different kinds of cases. Such a good question, Holly, which means gee, I don’t know the answer. But it can help you in developing your case in a way that you’ve not considered before. It can help you in focusing on what you need to do. And it can help you look at it in different ways than you have before.

Holly: So my initial thought was, you know, not all clients can afford this, it may end up costing a lot more to bring in somebody else. Do you find that to be the case? Or are there times when bringing in an outside person such as yourself for litigation strategy can actually help save the client money?

Jerome: Well, I think the second, because we’re going to cut to the chase, and I’m going to charge a lot less, $125 an hour than the attorney is. So I can help them develop that plan, cut to the chase, and get it done. So, you know, some degree, it’s, that’s my goal, because I think we really have to, we’re gonna come to the point where, if we think the pro se, problem, quote, problem is big now, it’s going to be bigger, because lawyers are going to price themselves out of this business. So my hope is to make it a less expensive process for a client.

Holly: I think what you said about newer attorneys, I know there are a lot of family lawyers out there who either hung up their own shingle straight out of law school, or who practice in some other area of practice, and then they go out on their own. And just as you mentioned earlier, you know, when you go out on your own what comes through the door, oftentimes, it’s family law cases. So, you know, having a resource out there to help for people who are in that situation, I think could be very valuable.

Jerome: I hope so. I hope so.

Holly: So we’re just about out of time. But one of the questions I like to ask everyone who comes on the show is, if you could give one piece of advice to young family lawyers, what would it be?

Jerome: Learn. Get CLE. Watch your peers. If you have a case with an experienced peer, take a look and listen, take a look at how they organize their their files, how they introduce evidence. Don’t be clunky. Be polite. Get to know the court staff. Oh, did you ask for just one piece of advice.

Holly: Feel free to give all the advice that you want.

Jerome: But it’s learn. Basically learn, learn, and don’t be proud.

Holly: Sometimes you can be proud when you do something else, okay. Where can our listeners go if they want to learn more about you or connect with you?

Jerome: Well, I have a very complicated email address. It’s [email protected]. I have the mediation newsletter, which is now combining litigation strategy, and you can give me, which if you want, just email me and I will send it to you. My phone number is 214-293-6109. And that’s, that’s that’s the basics.

Holly: Alright. Well thank you so much for joining us today. It’s been a long time since we’ve chatted, so it’s nice to catch up.

Jerome: It’s so nice. And thank you for the swag.

Holly: My podcast company gets all the credit for that. So for our listeners, if you enjoyed this podcast please take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.