`Are you “trial” experienced’?


Have you ever been to trial?  If you haven’t, you’re in for an experience!  Trials are vastly different than a family law motion calendar or a court date about temporary orders.  Trials are different from temporary hearings for seven reasons: stick factor, length of time, cost, preparation, stress, odds of occurrence, and rules regarding testimony and evidence.


Stick Factor.


Temporary orders are temporary.  This means that you can change them later on in the case.  They are not permanent.  On the other hand, trials are final.   Trials are permanent.  In trials, you get your orders as-is.  There’s no warranty expressed or implied with trial orders.  You get what you get and if you don’t like it, you look at trying an appeal which is both time consuming and rarely successful.


Length of Time.


Trials last a whole lot longer than temporary order hearings.  Temporary order hearings are quick.  The judge usually makes a snap decision about your case after listening to your lawyer and the other lawyer argue against each other.  In temporary orders each side usually gets around 5 minutes.   Trials can last for days and even weeks.  The longest trial I had concerned a child with severe autism.  The trial lasted three weeks.




Costs are significantly different.  Trials are not cheap.  The average trial will cost you about the price of a mid tier luxury car like a 5 Series BMW or E Class Mercedes.  Trials are anywhere from 5-20 times more expensive than temporary order hearings.  Sometimes I can get temporary orders done for under $5,000, but not always.  Trials are a whole different ball game.  If you think $5,000 is too much money to spend on your case, you really don’t want to go to trial.  If you want a lawyer to do your trial on the cheap end of things, go look in the yellow pages or, even better, Craigslist.




Good lawyers prepare and prepare some more and prepare some more after that.  When we reach the point at which we are at trial, I typically know more about my client than anyone in their family except their spouse.  I know every single aspect of your case that is both good and bad.   Once I know everything I can about your case, I’ll ask for more information.  I’ll often ask clients to give me the same stuff they’ve already given to me because sometimes I find that clients do miss things and make decisions about what the lawyer should see and what the lawyer shouldn’t see.  Many times the clients are wrong about that decision and it ends up hurting them and their case.   I know birth dates, anniversary dates, lines of questions that I expect the case to go down.  I’ll have conducted an investigation of the opposing counsel so I can get an idea of their style.  Trials take a ton of time that the client must pay for.  If you think I go overboard, then you might want to find a lawyer who is less prepared and take your chances with them.  I don’t take chances with my client’s lives.




Motion calendars are stressful for clients.  I’ve done so many of them that they are almost automatic for me now.  On the other hand, trials are stressful for both the attorney and the client.  It’s stressful for the client because their entire life is flashing before their eyes.  Can they keep their business?  Are they going to be able to keep custody?  Will she be required to get a drug evaluation?  What will happen with our checking account?  Is the judge going to hammer me for not allowing visitation last week?  Does the judge really hate men?  These are the questions that are going through my client’s minds.  Meanwhile, I’m pretty busy with my own line of thoughts that take away from my availability to both my client going to trial and to my other clients.  When I prepare for trial, I go into a room and leave the cell phone and Internet access behind.  My job is to focus on the client and get rid of the distractions.  You can’t do that if you have a staff member coming into your office every twenty minutes asking you if, “Have you got a minute?” or “Just a quick question”.   My clients deserve my focus.  I demand it.




Trials are rare.  Motion calendar hearings are quite common.  70% of my clients either appear on the motion calendar or seriously considered going on the calendar during representation.  Less than 1% of family law cases get to trial. People ask me which is more important: trials or motion calendar hearings?  My answer is always the same: motion calendar hearings and the reason is because your odds of getting to trial are very remote.  Now, if you are a week before trial, obviously, trials are important but for people looking at the process from the outside, there’s no question that temporary orders play a much larger role in the divorce process.


Rules of Evidence.


Rules enforcement regarding testimony and evidence are vastly different.  I know a few lawyers who metaphorically suggest that the difference here is that with trials there actually are rules, where as in motion calendars there are no rules.  While this isn’t completely accurate, their point is valid and often spot on.  In trials, evidence and testimony must meet certain standards or it won’t get considered.  In legal speak, evidence must be admissible, relevant, not hearsay, and authentic.  This isn’t as easy as you think it is.  An astute counsel will object to everything that you try to file with the court.  Why?  Because that means that your evidence can not be considered by the Judge.  If your evidence can not be considered this means that your soon to be ex spouse is one little step closer to winning against you.   On the other hand with the motion calendar, there are many commissioners that allow just about anything “in” the case.  I know a couple of commissioners that allow virtually anything into evidence including statements made by a 5 year old “heard” by the self-serving parent.


The Trial Experience


Once you get to trial, you’ll find the days go by quickly.  Yes, there will be good trial days and bad trial days.  You will probably screw up on the stand at least once.  But keep your poise and listen to your lawyer.  Chances are they’ve been there before and they are only trying to make sure that you never have to go back again.



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