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Going To Trial

This is it! There’s no reason to be nervous, though, if you have followed the road map in this book. You have been getting ready for trial from the very beginning of your divorce case, and you have been largely ready long before now. The facts and opinions you needed to consider at settlement are in hand, for use at trial. Gather together the evidence that you have uncovered, the arguments that you have prepared and polish your presentation for the courtroom.

Your trial will be about two weeks after your R&SC in many court systems. You have nothing to do except meet with your attorney to go over areas in which you will be testifying, and those areas on which your attorney will focus when cross-examining your spouse or perhaps an expert witness being used by your spouse. This is a good time to review the suggestions on testifying under oath in Chapter Eight.

Your attorney must now finish up the final steps of preparation that were put on hold on the chance your case might settle. The trial brief, typically filed the morning of trial, uses most of the factual material from the R&SC Statement. However, legal authority and argument must be further developed and polished to supplement the facts. You will want your brief to be so clear on the facts and so crisp and enlightening on the legal issues that the judge uses a copy of it to make notes during the trial.

Expert witnesses may require considerable additional time at this stage of your divorce case. Each must be prepared for your trial and your facts, no matter how many times he or she has previously testified. Also, your spouse’s expert may have made a few points in the deposition that must be addressed in order to persuade the court at trial.

Depending on the circumstances, you may be requesting attorney’s fees and costs in your trial brief. Any unreasonable conduct on your spouse’s part will finally cost him or her. You may also be entitled to attorney’s fees based upon your need and your spouse’s ability to pay. Evidence must be submitted to the judge establishing the amount of the fees, the necessary costs, their reasonableness, your need for an award, your relative ability to pay them yourself and the ability of your spouse to pay them.

Fee awards are rarely granted in the full amount requested. Yet, even here an exception arises when one party is entirely dependent on the other. Courts increasingly recognize a need to “level the playing field” in marital dissolution cases. Even a spouse with property may be entitled to an award of funds from the other spouse in an amount necessary to protect his or her rights against the affluent party without having to invade capital. An important exception arises when the award is really punishment inflicted on an unreasonable spouse to discourage conduct that wastes the court’s time or is abusive of the legal system.

Being ready for trial demands more than preparation of legal arguments. Much of the work is making sure that the right person or thing is in the right place at the right time. Trial subpoenas have to be issued or reissued depending on how the date is set in your area. Special exhibits to graphically emphasize your important points must be completed. Your attorney may need your assistance with last-minute questions about documents or facts to be confirmed with an expert witness.

The judge to whom your case has been assigned for trial may have a reputation for ruling on an issue important to you in an unfavorable manner. Will this be the judge’s first appearance in your case? Do you have your preemptory challenge available in your court’s jurisdiction? Are you apt to get a judge more favorable overall if you disqualify this judge? Your attorney should use the preemptory challenge and disqualify this judge, without having to give any reason, if the answer to each of these questions is "Yes".

Trial is no surprise. At least, it is not supposed to produce surprises. You have been building up to this for over six months. Your attorney is prepared to conduct the trial. You’ll be a witness and a resource to your attorney if your spouse attempts to spring a surprise. You are a party to this lawsuit: this is your divorce. You will be allowed to sit at counsel table with your attorney and pass notes if you hear something untrue in the opposing testimony. Good Luck!