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Posted on May 21, 2023

Arguing Using Emotion In An Illinois Divorce

The words “argue” and “divorce” go hand in hand. In an Illinois divorce proceeding, an argument is not the bickering, squabbling or even screaming that occurred in the underlying relationship.

In an Illinois divorce proceeding an argument is “a statement that attempts to persuade by setting forth reasons why something is true or untrue, right or wrong, better or worse, etc,; especially the remarks of counsel in analyzing and pointing out or repudiating a desired inference, made for the assistance of a decision maker.” Black’s Law Dictionary (11th ed. 2019)

Arguing is what divorce lawyers are paid to do. Lawyers, being analytical by nature, often argue with a mere recitation of facts and application of law. Most lawyers need to remind themselves to insert emotion into their arguments for additional persuasive power.

Argument In An Illinois Divorce

Argument is everywhere in family law. In the opening statement, during testimony and especially during closing arguments.

In a legal setting, arguments happen after evidence is entered. In family law, evidence is rarely formally presented. Communication with the divorce judge is often pure argument via summary hearings.

Divorce lawyers who count bluster as their only skill are usually pretty good at arguing…because that’s all they know how to do. The problem is that these proto-arguers do NOT refer to evidence or the law…which is all the court is allowed to consider.

Judges are supposed to review the evidence and apply the law to the evidence entered into the record. Lawyers are supposed to get that evidence into the record and then argue how the law applies to that evidence.

Divorce lawyers who bother to acquire the skill to adequately present and enter evidence lean on the evidence they’ve deftly included in the record and then act like their case is self-evident. Arguments still need to be made as to why the evidence should persuade the judge’s ruling.

Finally, divorce lawyers with a firm grasp on the Illinois Marriage and Dissolution of Marriage Act and the thousands of binding precedent appellate decisions enjoy making a clever legal argument with little reference to the weight of the facts available for consideration.

This is family law. A divorce judgment applies specific rules to two human beings who, at one point, loved each other passionately. It is an error to argue without reference to the actual human beings whose fates are in play.

Tapping into the emotional aspect of the divorce is what moves judges to adopt your logical arguments. Judges are not computers who accept data and provide a result. Judges are people with families and experiences similar to the divorce litigant. Furthermore, the judge is a lawyer who probably made the same arguments for their own clients years ago.

Gerry Spence is probably the greatest trial lawyer in history. Here is what Gerry Spence has to say about lawyers using emotional arguments:

“By the time we get through law school, we are thoroughly convinced that to be a successful trial lawyer we have to be skilled in fancy argument, polemics of one kind or another prevail, and that, somehow, we have to put aside our feelings. If we are really real and reveal ourselves we will be shamed and laughed at and found inadequate…But of course, the truth, the exact truth, is the opposite of that. You can’t become a good trial lawyer without being a decent person…but to become a really effective trial lawyer one must become a real human being. We cannot be successful in front of ordinary people if we are not real ourselves. If I can’t love my client how can I ask you to love my client? We have to be real human beings and be as credible as real human beings can be if we’re going to be successful.”

It is this “realness” that a divorce lawyer must tap into in order to persuade the judge. This “realness” goes beyond merely reciting the facts and cleverly applying the law.

Arguing In The Human Context In An Illinois Divorce

When arguing a client’s divorce case, a divorce lawyer must argue in the context of their client as a person. The client is always a person who everyone in the process must respect as spouse, parent and citizen. The client is not merely a character in a play about evidence and law.

Arguing in the human context is best defined by what it is NOT. The “context as a human” cannot be captured by the court reporter: words typed on a transcript. The “context as a person” is the divorce lawyer’s eyes, the divorce lawyer’s body position, the divorce lawyer’s vocal range and the divorce lawyer’s physicality.

These physical elements are persuasive! Your eyes connect with the judge as a person. Your vocal tone tells the judge how much this matters to you as a person. Your position on-camera or in the courtroom conveys confidence and humility appropriately. Your physicality (code for your arms and hands) keeps the judge’s eyes darting in your direction. 

Not all divorce lawyers are natural physical communicators. More likely, a divorce lawyer prefers preparing lists as their medium of communication. So, here is a list of how to communicate physically in order to convey human context:

Step 1: What is the theme of this case? The theme is the one to three line story of the case as a blurb. Themes are most memorable part of a sticky situation like a divorce case. If you don’t pick the theme for the judge…your opponent or the judge will pick the theme for you. Example: “This is the case about the husband who may not have loved his wife but he loved his kids” or “This is the case about the woman who had a hernia so she couldn’t work”

Step 2: Is that theme real to you? Do involuntarily smile thinking about the bad husband who became a good dad? Do you wince imagining your client’s hernia?

If the theme does not feel “real,” pick a new theme.

Why is the theme real to you? Write out the reason the them is real as if you were explaining to a 7 year old. Do not re-list the evidence and law (the imaginary 7 year old does not understand that). Write the fundamental things that make the story real. The story will almost always be told in a sensory manner. Describe the things you or your client saw, heard, felt, even smelled or tasted. 

Example: My theme is real to me because “He showed up at the mom’s house on Christmas morning. His arms were full of presents for the kids. She slammed the door in his face. He felt the cold winter wind while he heard the muffled voices of his children ask ‘who was at the door?’” or “She laid in bed for six months smelling like Vic’s VapoRub. She ached in pain every time she had to get up to go to the bathroom. Even propping a computer on her lap to send out a resume via email would put her in agony.”

“If I am real, if I am speaking from the heart zone, the right words will come.” Gerry Spence, How to Argue and Win Every Time (1995)

Now, you should be in the right headspace to communicate the realness of the theme…but you cannot communicate your theme in words alone.

“The old adage that it is not what one says but how one says it comes to mind. Identical words can have vastly different meanings based solely on the speaker’s tone, body language, or both. And these factors may have a profound effect on a fact finder’s evaluation of a speaker’s credibility, believability, or trustworthiness. That is to say, a person’s tone or body language can enhance or detract from his credibility” People v. Carter, 2021 IL App (4th) 180581

How would you communicate this “realness of the theme” with your eyes?

How would you communicate this “realness of the theme” with your position (especially if you’re on zoom)

How would you communicate this “realness of the theme” with your vocal range and tone (Say out loud the things that make the theme real to you, that’s your range and tone)

How would you communicate this “realness of the theme” with your physicality?  (What body movements do you make while explaining the theme)

This can all be done in front of a mirror or on a Zoom screen with no one watching. 

Do you look real and authentic? If not, start all over.

When your presentation does feel and look real and authentic, you can begin working through the evidence that you plan to present or have presented. 

You will describe the evidence that was admitted with newfound zeal and appropriate emotional context with this three-step process:

1) Describe the evidence to be presented or the evidence that was presented

2) Explain how the evidence should make the judge feel.

3) Apply the law to validate how the evidence should make the judge feel (the actual lawyer stuff). 

For every piece of relevant evidence which was admitted or will be admitted, do this three-step process. Each piece of evidence is independent and needs its own three step argument.

Order the evidence in a way that builds on the theme each time. (Chronologically recounting the evidence is to be avoided).

“My client testified that this so-called bachelor party vacation that his ex-wife was upset about was cut short…so my client could see his kids early. This tells us his priorities. This shows us that his kids always came first…even when she didn’t like it…even when he probably didn’t like it. The statute requires us to consider “the willingness and ability of each parent to place the needs of the child ahead of his or her own needs” 750 ILCS 5/602.7(b)(12)

You should remain in the mindset where the theme is real to you. Meanwhile you should be building your argument with the evidentiary building blocks step by step.

Your final argument is how the evidence you have recounted is real, how the evidence should make the judge feel and how the law should be applied to validate those feelings. This final argument should occur to you as naturally as possible to confirm its realness. If you are forcing logical inferences…the argument is probably not real and it’s probably not persuasive.

“My client did everything he could, judge. He sat in the back of the auditorium and watched his children’s graduation even though he wasn’t invited. He sent the children letters saying he missed them. He spent hours with a therapist going over the details of his relationship with his parents and his ex-wife. These were not acts of quiet desperation. These were solid, committed steps towards being the parent that these children needed. The evidence should make you proud, judge. Proud that people can and will change when their children need them. Don’t let all this good work go to waste. Let these children see their father. The father that did all the work hoping someone would notice”

While the words are flowing, your eyes and body should be in perfect synchronicity with the words that come out of your mouth. This is something that you are not just saying. This is something you believe…and the judge should believe it, too.

It should go without saying that arguing using emotion and communicating that emotion via physicality (there really is no other way) can only be done orally. Judges may ask for a written closing argument but you should emphatically refuse. Your client has a right to have their story heard in as many dimensions as possible.

If a final logical and emotional argument does not occur to you at the end of your monologue about the realness of your theme…then the argument is probably not very good and you should start over again.

This article was largely based off the insights Brendan Hammer shared with his colleagues in his ABA Family Law presentation “Put that Coffee Down…Developing, Delivering, and Defending Against Compelling Opening Statements and Oral Closing Arguments.” If there is a better deliverer of arguments in the family law context than Brendan Hammer…I have not seen them.

If you need crisp legal analysis coupled with emotional heft in your Illinois divorce case, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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