The Four Cardinal Rules You Must Follow
It may seem like an odd blog post, How to “win” your divorce case in a bench trial. The law is applied to the facts by the judge who then decides the case, right? Not necessarily. Judges are impartial, but a case can be won or lost by an unprepared litigant or attorney or failure to follow what are the four cardinal rules of trial. These are the topic of this blog post.
The first and most important part of a trial is to have a trial theme that defines your case. This is like the moral to the story or the plot of the book. If you want sole physical and legal custody or an unequal division of the marital estate, make sure your testimony and that of your witnesses as well as your and exhibits tell this unified story: Your evidence should let the court know what you want, why it is equitable, and how it will work.
Second, prepare and then prepare some more. What do you need to know to prepare? While most cases are resolved in mediation, a handful go to trial. When this is the case, television sometimes does a disservice to the reality of a trial. In most shows, the attorney meets the client at court and goes in and tries the case. That is the recipe for disaster and how to LOSE your case.
In reality, most of the trial is done in the preparation phase (a few days or more before trial, or much longer such as with items like getting appraisals). As a general rule of thumb, it takes two or three days to prepare for every day of trial; and generally, about three witnesses can be called in the morning of a trial and the afternoon. So be sure you have asked for sufficient time for your trial.
The more prepared you are with the questions to be asked to put the evidence on and exhibits identified and marked in advance, the smoother and faster the trial will go and more likely the theme is to come through to the court to “win” your case. Further, complete answers come from thinking about your case over time so as to remember key details the court needs to hear in the testimony. A good litigant does not rise to the occasion and have his or best day in court by just showing up, but defaults to how much he or she has prepared for the case.
Thirdly, be prepared for cross-examination by practicing the hard questions you expect you will be asked that are relevant; and then at trial, truthfully answer these questions. Human nature sends many litigants into defense mode and they are evasive or non-responsive to cross-exam questions. Everyone has a weak spot in his or her case and being honest is the best way to be perceived as credible by the trial court.
Further, when the cross question does not tell the complete story, such as with substance abuse or mental illness questions, there will be ample time for your counsel to ask you a re-direct question to clarify the question asked on cross. Arguing with the opposing counsel, refusing to answer a cross-question, or being evasive is a sure way to have the court wonder what part of your testimony is accurate and complete if any.
Finally, know what you want. This is very important where one spouse is “hurt” and just wants to be unreasonable and be in attack mode at trial. A clear case compared to an unreasonable, hostile opposing position, often wins to more or less degree because the other side paints a confusing evidentiary picture.
With this knowledge and clarity, you will have a filter through which you answer your questions, knowing what you want and why; in doing so, you will avoid making rude comments about your soon-to-be ex-spouse, blurting out uncontrollably or otherwise being disturbing in the decorum of the court. Being prepared will mitigate or eliminate this because you will have already crossed the hard-to-address questions or emotional hurt with your counsel before you enter the courtroom.
While this blog is perhaps the least “legal” of most of Dixon & Moseley, P.C. blog posts, we observe these rules constantly being violated in courtrooms across the State. This can do more harm to your case than just a weak legal position or argument. In other words, the best case may get the worst outcome for failure to follow these relatively common-sense rules.
This blog post was written by attorneys at Dixon & Moseley, P.C. who handle divorce and paternity cases of all type across the State. This blog is intended for general educational purposes only. It is not a solicitation for legal services or legal advice. It is an advertisement.