Settlement vs. Trial

Are you considering going to trial for your divorce? Do you understand the implications of settlement vs. trial for resolution? “I do“ the words that began your marriage, can also have a role in ending it. In addition to the sadness or ferocity to be made whole, to get even, to get paid, or simply to make the opposing side suffer, there are many other considerations to take into account. Are you aware of the wasted time and money involved in trial courts? Do you understand the rules of hearsay and what constitutes admissible evidence? Learn more about the benefits of settling versus going to court for resolution in your divorce.

The Last “I Do”

“I do” the words that began your marriage, will serve a role in ending your marriage. The hopes and dreams that attended your first “I do” are replaced by a sadness or a ferocity to be made whole, to get even, to get paid, or simply to make the opposing side suffer. Your trial testimony begins with the court asking if you will tell the truth — you answer “I do”.

Better questions might be:

Do you understand that the judge knows nothing about you?
Do you accept responsibility for turning over the important decisions of your future to a stranger in black robes?
Have you listened to the advice of your lawyer and the thoughts of the opposing lawyer in connection with resolving your case?
Do you believe the judge is able to predict the future?

Your answers to those questions might be very telling to the judge, to your adversary, and to yourself.

Settlement vs. Trial – Wasted Time and Money

If you pick trial in settlement vs. trial think about this. Trial courts are inefficient places. Multiple trials may be scheduled before one judge on a given day based upon the knowledge that the all but a tiny fraction of divorce cases settle. The court’s attitude is to schedule several trials at one time to wear down people’s resistance to negotiation and settlement. In addition, showing up for trial and not knowing whether you will be heard or not is extremely stressful.

Witnesses

You and your spouse will certainly want to testify in your divorce trial. Beyond that, you and your lawyer will have to strain greatly in order to find witnesses who can provide credible testimony. This is another important part of considering your trial experience, if you chose trial in settlement vs. trial.

We have all heard the term “hearsay”. Hearsay is not admissible at trial. The Hearsay Evidence Rules prevent someone from testifying about what they heard from another outside court so long as the purpose of the testimony is to assert that what they were told is the truth. In order for testimony to be admissible, the witness must be present in court or have been present in another forum that renders the testimony credible and admissible. Having a relative come in and testify that your wife is no good or that your husband failed to demonstrate his husbandly duties for the past five years will add nothing to the court’s analysis of the case.

Settlement vs. Trial – Expert Witness Testimony

Expert witnesses are paid to perform an investigation, prepare a written report, and testify at court. They get paid by the appearance or by the hour, in advance. Expert witnesses are not your friends. Expert witnesses who are credible with the court are credible because they appear on a regular basis, provide truthful and objective testimony, and put their reputation as a professional on a high plane. Experts do not work simply to please the client who has paid a fee.

Evidence

No one really knows what constitutes admissible evidence. We have rules of evidence. We have case law, which interprets particular scenarios. At trial, evidence is what the judge says it is. Some judges will expand the record to permit almost everything to come in. Since judges are hearing the evidence and weighing its admissibility and credibility at the same time, they naturally feel inclined to be able to self-sort. This means considering the important stuff and ignoring the unimportant stuff. Contrast this model with a criminal or civil jury trial where the judge serves as gatekeeper to avoid allowing the jury to hear and consider inadmissible evidence.

The court operates with substantial discretion in determining what evidence will be considered and what evidence will be ignored. In gathering your evidence and organizing your exhibits, you need to have disclosed every possible exhibit or document to the opposing side.

How Do I Find Out If I Won?

If you choose the trial part of settlement vs. trial, you have to consider this. Nobody wins in divorce cases. Days, weeks, or even months after the close of testimony, the trial summary, summation, or closing statement can be presented orally or in written form. The judge’s job is to find facts about your case and apply the law to those facts. The summary of facts and law is converted to a court order or divorce judgment.

The effective presentation will provide the judge with a format in order to point to facts favorable to you, minimize facts unfavorable to you, and educate the judge on the law. I know my client is a winner by simply looking at the format of the judge’s opinion. If my written summation has provided a format for the judge, the result will be at least fair to my client. If the presentation of the case is orderly and the written summation organized to flow with the judge’s trial notes, you will have done the best you can in minimizing emotions, feelings, and gut-reactions and maximizing the analysis of facts and presentation of the law in an accurate and favorable interpretation for your side of the case.

It is not uncommon for the court’s opinion to be weeks or even months away. Once you give control to the judge, you give into an artificial process over which you have no control. Do not forget that at any point during this process you are free to stop it by resolving your case.

Your Family Law Judge: 3 Points

Private Arbitration in Family Law

Thanks to Horn Law Group, LLC intern Noah Hilsdorf.