Preparing for and going to trial

Preparing for and going to trial, especially in complex divorces, can be intense, time-consuming, emotionally draining, unpredictable and expensive.

So taking care to prepare yourself for trial is urged and these suggestions may be helpful as you do.

1. Get and stay reasonably involved in the process. Even if you are working with a trial attorney, be actively involved in your case. Ask your attorney to discuss your trial strategy and identify specific tasks you can complete to help the process run smoothly. Be available to answer questions, sign documents and prepare your testimony. Be diligent but not obsessive or disruptive. Your constructive participation will make your divorce attorney’s job easier and can improve your chances of a favorable outcome.

2. Prepare and practice. If you are going to testify or present oral argument at trial, prepare and practice before your court date. Ask your attorney to explain the court’s procedures from start to finish. Run through a mock trial and answer the questions your attorney, your spouse’s attorney and/or the judge may raise during your trial. If you were deposed or answered interrogatories, re-read the transcript and your responses. Be familiar with the burden of proof, if any, that you carry and the facts or evidence that will be used to meet it. If your trial issues are complicated, do your best to understand what they are and what your role is in resolving them. Having a strong working knowledge of your case should make you feel more confident at trial.

3. Understand the risks. It is almost impossible to know with any certainty what a judge may or may not do in a divorce trial. Judges are human, which means they can be unpredictable, surly and fallible. They also have their own opinions, and interpretations of the law, which often differ from the those of attorneys and their clients. No matter what anyone tells you, there is always a risk that your divorce trial will not have the outcome you hoped for or your attorney genuinely expected. You need to be aware of the risks and feel comfortable taking them. Ask your attorney and other any experts (i.e. accountant) to explain your risks and worst case scenarios. Once you understand the risks, you can decide whether or not you are willing to take them.

4. Be aware of the hometown advantage. There are hundreds of courtrooms in California and each of them has local rules. Some of the rules are published and others are not. Attorneys who practice regularly within a particular county (“local attorneys”) are usually more familiar with these rules than attorneys who do not practice regularly in the county. Local attorneys also are usually more familiar with judges and vice versa. As a result, strong personal relationships may exist (nothing unethical) and, in my opinion, local attorneys can be given more deference at trial. For example, if a judge needs to make a ruling, he or she may defer to the local attorney based on his working knowledge and experiences with the attorney. This deference can make an out-of-town attorney’s job more difficult.

I have been both a local and out-of-town attorney and speak from my own personal opinion when I say it can be advantageous to hire a trial attorney who appears regularly in your county’s family courtrooms. Being liked by judges and other local attorneys can give your case more weight although it shouldn’t. Because so many counties are closely situated around the San Francisco Bay area, attorneys cross county borders regularly and are well liked by judges and lawyers in the neighboring (i.e. Marin) counties so don’t rule out good attorneys because they aren’t based in your county.

5. Consider an appeal before going to trial. If your case is complex and/or involves high stakes, consider speaking to an appellate attorney while you are preparing for trial. An appellate attorney can work with you and your trial attorney to identify the evidence you need to present or illicit at trial and the record you need to have established in the event of an appeal. There are specific requirements for appeal and well-versed appellate attorneys can pave the way to your successful appeal or spouse’s unsuccessful appeal.

If you anticipate going to trial in California and would like my help preparing for and during court, please complete the form below.


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