Your spouse won’t settle, and the threat of a divorce trial looms on the horizon. Should you take a divorce trial gamble?
First and foremost, seriously consider the risks.
There are no crystal balls, and judges are fallibly human. Even the best attorneys can’t guarantee the outcome of your case – even if the law and facts are black and white.
If you’re leaning towards taking a divorce trial gamble, consider this:
- You will surrender control of your family, finances, and future to complete strangers, many of whom have biases that could hurt you financially
- A judge’s bad decision can affect you negatively for the rest of your life
- The government’s judicial branch will dictate the time it takes to divorce
- Except in extraordinary cases, your divorce court file and transcripts are public record
- You can easily spend $50,000 to $500,000 on fees and costs
If after considering the risks you decide you must take a divorce trial gamble, which is sometimes plausible, adopt the following best practices.
Second, be reasonably involved in the process. Even if you have trial counsel, keep your head in the game; be proactive. Understand your trial strategy and your responsibilities in the case. Be diligent, but not obsessive or overpowering. Constructively participating makes a lawyer’s job easier and can improve your odds of a favorable outcome.
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.
Third, if the stakes are high, prepare for 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.
Fourth, beware 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.
Making a decision about a divorce trial gamble is difficult. If you would like my help, please schedule a consulting and coaching.