You want to know the nice thing about having a blog? (Even if you don’t, I’m going to tell you anyway.)
It’s that you get to write about anything you want.
I usually write specifically about divorce stuff. How to deal with parent-time issues. How Christmas works. How to divide property. That sort of thing.
Today, though, I’m stepping back from the how-to and writing about something more meta: what is at the heart of lawyering?
Usually, law students and lawyers would answer this by saying: the heart of lawyering is law.
Makes sense, right? I mean, the term “lawyer” is derived from “law.”
It’s a good, solid answer. But it’s wrong in my estimation.
I believe the heart of lawyer is two things: (1) assertion, and (2) evidence.
Assertion is what you say; your argument. Without assertion, law and lawyering could not exist.
Evidence is how you prove your assertion. Like Bernard Fischer said: “In God we trust. All others must have data.” Evidence is a lawyer’s data. Without it there is no trust and no convincing anyone of anything.
Lawyering, like everything else, is built on foundations. Before you can get to understanding the law, you have to know how to make assertions and how to back up those assertions.
If you know the law, but can’t marshal your evidence to prove your assertions, you’re going to lose, and you’re going to lose big.
This is especially important in realms like divorce law (the realm I inhabit everyday). If you make an assertion — e.g., your client’s husband is a danger to the kids — you better be able get the evidence together to back up that assertion.
If you go to court with a naked assertion and no evidence, you’ll lose and the judge will distrust you, which means you’ll likely lose again, and again, and again.
Evidence may be witness testimony in an affidavit. It might be bank documents. It might be text messages. It might be pictures of domestic violence. Whatever it is, you need to have it to prove your assertion.
Contrast this with making only assertions you can prove by gathering evidence. You do this and the court will trust what you say and will likely give you what you ask for (provided your ask is in line with your assertion and the law, but that’s a discussion for another time).
The moral of the story is this: understand the relationship of assertion and evidence, and don’t make an assertion you can’t prove. This is the essence of lawyering.
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