The conventional wisdom in Family Law is that the divorcing client is generally better served by achieving a mutually-agreed settlement of the issues in his or her case as opposed to having a judge decide the issues in court. Nonetheless, there are cases which, for any one of a number of reasons, have to be litigated. If you find yourself in this situation, what should you be looking for in selecting and working with a divorce litigator?
The answer can be summed up in three points: the theory of the case, organization and preparation.
The Theory of the Case. In order to put on an effective case which will persuade the judge to rule in your favor, your attorney must be able to assemble and analyze the relevant facts, research the statutes and cases to identify the controlling law, and then craft a succinct and persuasive “story” or theory which combines the facts and the law as a foundation for how the case will be presented to the court. For the case to be effective, the opening and closing arguments as well as the testimony of the witnesses and the exhibits presented in court must all fit into the structure created by the theory of the case.
Organization. An experienced litigator will have a well-developed method of bringing all of the moving parts of trial preparation into an organized process. Complex divorce cases are generally best handled by a law firm, where a team can be assembled to most efficiently handle the numerous tasks necessary to ready the case for trial. Some tasks will be assigned to the client, particularly those having to do with nailing down the facts about which the client has personal knowledge. Some will be completed by a paralegal such as the drafting of discovery requests and the preparation of financial statements. One of the attorneys may do the legal research necessary to flesh out the theory of the case and work with the witnesses, while the lead attorney will have overall responsibility for most effectively conducting the trial.
A critical skill for an effective Family Law litigator is the attorney’s ability to make decisions about what should be presented to the court and what should be left out. To an emotional client, all of the details surrounding the break-up of the marriage may seem important. But when a case is filled with clutter and “noise,” it is more difficult for the judge to focus on the facts on which the outcome of the case should turn. The litigator’s skill in keeping his or her eye “on the ball”, and not being distracted by non-essentials will be key in achieving a good outcome.
Preparation. Laying out each factual and legal element which support the theory of the case, as well as how each element will be brought before the court, should be addressed early on in the trial prep process. Will the case need a subpoenaed document? Will an expert witness be necessary? Does the family accountant need to testify in order to establish a pivotal point? Can the client credibly testify to the critical item? Will that testimony need to be corroborated? Does the other party have evidence that will undercut the client’s testimony? All can and must be handled well in advance of trial.
Perhaps surprisingly, being an effective divorce litigator also requires being prepared for and open to settlement opportunities if they should present themselves. The uncovering of new facts may change the dynamics of the case to make settlement more feasible even though the trial preparation is well underway. The experienced divorce litigator will be prepared to take advantage of such a development if it occurs.
So if your divorce case may be heading for trial, look for the hallmarks of an effective litigator as you select and work with your attorney.