The keys to making your best case for obtaining what you want in a divorce trial is by focusing on the obvious and basics—but what is rarely ever consciously considered by the parties before or at trial. These are the litigants, the attorneys, and the judge. This merits a blog post because there is no right to a jury trial in a divorce. Therefore, all of these items should be consciously considered.
The litigants (parties, husband, and wife). Most judges and lawyers have crossed professional paths before in either a previous case together or at a bar event. At a minimum, they share the same legal knowledge and training and they also have defined roles. The judge is an impartial neutral. The attorneys are advocates for their clients. However, litigants are a completely new variable these professionals serve.
We are human and we want to have our say about our particular situation. However, it is important not to bring unneeded emotion into what you have to say. Your story may range from the dynamics that led to the divorce, and you may feel a need to go over it time and time again, but you should stay focused on what you need and want. Understand that you get one chance, and only one, to tell the story in court.
Remember, however, the judge is the fact-finder and judges the credibility of your story. Are you believable? Are you focused on “punishing” your soon-to-be ex-spouse? Are you truly focused on your children? All of the dimensions of your story should be reasonable and balanced and focused on what you want, why you want it, and most importantly, how it fits in the law.
But do you really understand how you come off to others, including the judge, not just how you perceive it? The time to answer this question is long before your divorce final hearing. If you do, you will tell your story in a balanced way which will put the evidence into the place you need to make your legal objectives—and make your best day in court for the judge to decide the case in a fair and balanced way under the law. Smirk, talk under your breath, have outbursts? The court can and should consider it as the fact finder.
The attorneys. The attorneys are advocates for their clients under the laws of the Dissolution Act. However, many litigants only provide their attorneys with incomplete information or emotional positions. This type of attorney-client relationship is “toxic” and may well, despite the attorney’s best advice, continue to the trial. This effectively means the evidence will be incomplete, slanted and speaks volumes to the fact-finder as to how he or she should weigh the evidence under the Dissolution Act.
For instance, if you are seeking joint physical and legal custody and are unreasonable, the judge may well believe this foreshadows “battling” after trial and conflict for the children in co-parenting. This may result in a divorce order supported by the evidence that is driven by acrimony, not awarding joint custody, and clearly not who you are or who you intend to be. In other words, your words and actions in court may well direct the outcome of the case, as well as your future. Be respectful and insightful of this dynamic court. No amount of lawyering or legal preparation by the attorney can account for this key, critical, and perhaps determinative variable. Forget this at your peril.
The judge. Judges are elected attorneys who are impartial fact-finders. However, they are people first. The Indiana appellate courts, by deference to the electorate, defer to their ability to judge people. That said, every judge is different. Ask your attorney how to make your best case in front of this judge. If your judge is a stickler for time, do not be late to court (never be late to court). If your judge has a background as a prosecutor, for instance, he or she may place more or less weight on perceived untruthful testimony than a former civil practitioner… now judge? None of this impacts the outcome but does speak to how you can most effectively present your evidence based on the judge’s preferences. Give the judge what he or she wants. Be mindful.
These are the “unsaid” or “unconscious” variables in divorce litigation. However, they literally drive the story you are relaying in your testimony. The judge, well, is judging. Now you know the most important part of how to present your best case in your divorce trial. This blog is written by attorneys at Dixon & Moseley, P.C. who handle the full spectrum of divorce cases throughout Indiana. This blog is not intended as legal advice or a solicitation for services. It is an advertisement.