Trials Pt 1: Preparation

In all fairness, the topic of trial in family law cases can (and has) filled volumes. In the interest of keeping this “one sitting reading,” I am simply dividing things up in to trial preparation and trial itself, since each are distinctive (and very different) phases. Hopefully this will be helpful to you if you are getting ready for a divorce or custody trial in Snohomish County.

Before you discuss trial preparation, you have to talk about what should happen before you get to that stage. Ideally, trial preparation will not happen until mediation has been done, all possibilities of settlement have been exhausted, and the parties are certain there is not option other than trial to resolve the case. Because of the stress and expense associated with trial, it is imperative that your lawyer has very seriously discussed the potential range of outcomes at trial before the trial preparation process starts. If you read my previous posts, this discussion should have happened before mediation, but if it did not, make sure it happens before committing to trial preparation.

Trial preparation is one of the most labor-intensive parts of the process.

Your lawyer will have to review all of the discovery in the case to make sure that he or she has all of the relevant information for the trial. Depending on your case, that can be an extraordinarily large amount of information. For example, in a fifteen year marriage with kids, the lawyer would need to know, at bare minimum, all the information about the two parents’ child-rearing capabilities, the value of the marital home, the value of any pensions or investment accounts, and the likely career paths of both parents (and their projected incomes). If there is a guardian ad litem for the children, their report will have to be provided as well.

In many instances, trial preparation will involve retaining expert witnesses to testify. Appraisers testify about the value of real property and businesses owned by the parties. CPAs and analysts will have to be retained to talk about the value of retirement accounts. Sometimes therapists or other medical professionals will have to talk about parenting issues. These experts will have to be hired, perform assessments, and be prepared to testify at trial.

Even if your trial does not involve any expert testimony (often, parties will agree to certain expert assessments to avoid costly fees for experts testifying), there is still substantial effort in preparing witness testimony.

At the bare minimum, you will have to be prepared to testify. This means that your lawyer will have to prepare you to talk about all of the relevant issues in your case. Your lawyer will also need to prepare you to be cross-examined by the other side. This will mean several hours spent at the lawyer’s office practicing your testimony. This can often be a stressful process because you are learning the technical skill of testifying and handling the emotional aspect of managing the stress.

I am not aware of any “magical formula” to dispel people’s nervousness. The best I have been able to come up with, through many years of practice, is lots of simulation. For clients that are nervous, I spend a lot of time practicing so that the client builds confidence as they have successfully repeated the testimony (and for my clients, typically handled highly exaggerated simulations of cross examination).

One of the things I stress to clients is that getting ready to testify does not mean becoming a trained orator. Clients have nightmares about being expected to give some long, eloquent speech. That is not required. All you have to do is transmit information in a way that is clear, credible, respectful, and consistent. The judges who hear these cases listen to lay witness testimony all the time, and they understand that they are encountering people at their most stressed and least comfortable. They are not expecting any grand speeches, and will not hold your lack of eloquence against you.

Your attorney should spend a lot of time in trial preparation helping you get a sense about what to expect. Family law trials look very different from the jury trials you might see on television in criminal cases or civil cases. These trials are bench trials, which mean that a judge is the only one who hears the case and makes ruling. Because the judges tend to be very seasoned lawyers, they are not terribly impressed by theatrics. As a result, you might be struck by how direct and “to the point” trial presentations are. This is purposeful – evidence and reasonableness persuade judges. Grandstanding might work on a jury, but it rarely works on a judge.

It is also likely that the attorney will need to prepare other lay witnesses (friends, family, etc.) to testify. Their preparation likely will not be as intensive as yours, but you should still expect that these witnesses will spend time at your lawyers office practicing their testimony.

Significant amounts of time are spent preparing exhibits. Exhibits are documents used as evidence in trial. Things like pension values, bank account values, and the like are usually established with exhibits, so expect that your lawyer (and, typically, their support staff) are going to spend a lot of time processing documents to get ready for trial.

Another common aspect of trial preparation is depositions. Typically, many family law cases are resolved without a single deposition. The parties can exchange paper discovery and lawyers can just talk to witnesses on the phone. The reason depositions happen before trial is to “nail down” what witnesses are going to testify to, to avoid any unexpected disclosures at trial. A lot of lawyers will not try a divorce case unless they have deposed, at bare minimum, the opposing party and any experts. If depositions occur, it is important to treat them with the same seriousness as you would a trial since the transcripts from those depositions can usually be used at trial.

As you might imagine, considering all of these steps that have to be taken, trial preparation is expensive. It is very common for lawyers to ask for a substantial advanced fee deposit before committing to trying a case. If you think your case is unlikely to settle, you should start budgeting for trial expenses as soon as possible. Exactly how much lawyers asks for varies from lawyer to lawyer (and from the complexity of the case), but you should expect to pay several thousand dollars at the outset of the trial preparation process.

In a perfect world, a party’s resources would not dictate whether or not they chose to take a case to trial, but the reality is that these things do matter. When I am assisting a client, throughout the case, I will gently remind them that there might be a trial in the future. As they choose what things to fight about, I ask them to do that with these types of expenses in mind.

The only “silver lining” of the stress and expense of trial is that it encourages people to be realistic about outcomes and settle cases when they can.

This is a deep topic, so my next post will be about the trial itself, and in the future, I will devote some time to both the legal and psychological aftermath of the experience, because there is a lot of important information about those topics.

As always, I hope this information helps you as you navigate the challenges of a divorce.