In the pre-divorce planning stages, it is important to identify whether the case is likely to proceed to trial. Although more than 95% of divorce cases are settled out of court without a trial, the small minority of cases that require a trial present a disproportionately large portion of a family law attorney’s work. While even high-conflict cases can be settled at the early stages, the cases that do go to trial typically involve a spouse who is unreasonable or irrational about the issues, or who is resistant to the divorce. Despite the emotions inherently involved in divorce, most spouses are able to objectively consider the issues and decide on an approach that rationally considers the pros and cons of contested court proceedings. A spouse who is resisting the divorce or who has a personality disorder (e.g., narcissistic personality disorder, borderline personality disorder or avoidant personality disorder) may refuse all means of compromise and insist on having a judge decide the case. In such cases, preparation for trial should begin early, so that the resolution of the case will not be unreasonably delayed. This includes careful gathering of all relevant evidence, witness interviews, financial analysis, retention of experts and often one or more depositions to establish the facts.
The successful advocacy of a divorce or other family law case at trial requires expertise in the key principles of advocacy. First, the attorney must be skilled in time-tested advocacy techniques, including the development of clear narratives, case themes and metaphors, the use of visual aids and courtroom technology, and the self-discipline to be brief, precise and targeted. Second, the attorney must master the timing sequence of the court’s pretrial requirements, so that the pleadings, pretrial hearings, financial disclosures and discovery will be efficiently completed and not cause delay. Third, the attorney must know the court and be familiar with the specific rules in the county. Each judge has his or her own approach to trials, and it is essential for the attorney to fully understand the judge’s requirements and preferences for trial. Fourth, the attorney must know the client and his or her goals, needs and concerns about the case. The attorney must be fully prepared to advocate on the client’s behalf and tell his or her story more effectively than the other side.
At Next Legal, our attorneys know that success in the courtroom is generally determined in advance through careful preparation and thorough understanding of the facts, evidence and law. In turn, this level of preparation requires a high level of teamwork between and among the legal team and client. Strong communications between the legal team and client, and within the legal team, are essential to each step in the process of preparing for success at trial.
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