Simon Law Group: THE BEST DEFENSE IS A GOOD OFFENSE

Thursday, June 18, 2015

THE BEST DEFENSE IS A GOOD OFFENSE – EXCEPT WHEN IT IS NOT

We have an adversary who loves to say, when responding to motions that we have filed, that the best defense is a good offense. He has even taking to giving official attribution to the person that came up with that line. The gist of the statement is that our client is going on the attack to divert from his/her own wrong doing. But really what it is is a tactic to create a smoke screen. If permitted at argument, I was prepared with a few quotes of my own (“the lady doth protest too much, methinks”; and “If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck” both came to mind.)

That said, here’s how it works. Parent #1 makes an allegation that the parent #2 interfered with parenting time. Parent #2’s response goes something like this, “In response to the allegation that I interfered with Parent #1’s parenting time, ADD ATTACK AGAINST PARENTING #1 HERE THAT IN NO WAY ACTUALLY RESPONDS TO THE ALLEGATION. Put another way, instead of specifically addressing the conduct that was alleged to have been perpetrated, just say what the other party did wrong – or worse, that the other party does it too – so it is justified or some in some way okay. What you have here is what seems to be a denial, but it is really a non-denial or a some type of two wrongs make a right justification.

That is, until you point out, if you even have to, that the specific conduct was never denied. Don’t assume that the judge is going to pick up on it – be prepared to point it out. Be prepared to actually quote the specific response. Judges expect parties to spin facts. They don’t like to be lied to and don’t like it when parties or lawyers sidestep issues. This happened just recently in a case and the judge made a point of saying that, when you read the papers carefully, this is the unusual case where the allegations really weren’t denied – just before she came down hard on the parties.

The bottom line is that quotes and other fancy tricks are great, except when the court actually cuts through the morass and realizes that you didn’t actually deny what was said. Have fun then.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: