30-May-2013

Tempe Family Law Attorney Shares Trial Preparation Issues for Clients 

Submitted by Attorney Douglas C. Gardner

In any case, there are two ways that a case can be finalized:  First, the parties with the assistance of their legal counsel can reach an appropriate and equitable agreement and have this approved by the Court, and second, the parties can go to trial and present their case for the Judge to make the necessary decisions.

As I have discussed in other blogs, it is by far preferable in most cases if the parties can reach a full agreement on all issues.  In short, even an agreement that neither party really likes is generally better than any order that the Court can enter and shove down the throats of both parties.  The parties have lived their life, and know it best.  A good attorney will have a pretty strong idea about the lives of the parties, but cannot know everything, and a Judge will know the least about the case of everybody involved in the case.  Nonetheless, when a case proceeds to trial, it is the Judge that is left with the responsibility of entering final decisions. There are certain steps that clients can do to help their attorney best educate the Judge about the case to increase the chance of a favorable decision.

Additionally, even in cases that are able to be resolved and settled short of trial, an attorney that has been provided with appropriate information and documentation can often use this information to negotiate a more favorable outcome through settlement.

The difficulty for the judge in so many cases is that the evidence comes back as “he-said/she-said.”  The judge often does not know who to believe, and accordingly the resultant decision may be limited based upon the Judge’s lack of persuasive evidence to break the tie. 

When child support is contested, make sure that your attorney has appropriate documentation for the cost of medical insurance (documentation from your H.R. department reflecting the cost for you alone compared to the cost to ensure yourself and the children).   Make sure that your attorney has a contract or receipts reflecting the cost of day care expenses for the children.  These two issues (cost of insurance and cost of daycare) are often based upon testimony, but with a lack of receipts or documentary evidence.  If one party says the cost is $200 per month and the other says it is $600 per month, what is the Judge to do?  However, if one party says the cost is $600.00 per month and brings in a contract reflecting $600.00 per month and canceled checks for $600 for each of the last few months, there is a very strong chance that the Judge will side with that party despite the claims of the other party to a lesser amount.  

In financial issues such as child support, spousal support, and awards of attorney’s fees, the Court has to determine what the incomes of each party are.  In some cases, this is very simple as a party earns a salary that never changes.  However, in other cases, there are questions regarding bonuses, overtime, commission structures, etc.  Providing your attorney with documentation or contracts that show that these sources of additional income may help your attorney persuade the Judge to make an income finding favorable to your case.

In cases of claims that certain items were gifts from family members or inheritances, such claims are simple enough for the other party to make opposing claims.  Providing your attorney with the wills of deceased relatives, or other documents showing the gift or inheritance will help your attorney break the he-said/she-said tie. 

The procedural rules require that documents that are intended to be used at trial be disclosed within 40 days of the Response being filed with the Court.  Most courts order that all documents be disclosed or shared at least 60 days before trial and will often preclude (not allow) any documents not appropriately disclosed from being used at trial.

When in doubt, disclose.  Generally it is better for your attorney to have too much information and too many documents than to struggle with not having enough information to make your case to the Court.  Be sure that you have a frank discussion with your attorney about what evidence you have available and can be used to successfully negotiate your case and if necessary proceed through a successful trial.

If you are involved in a divorce, legal separation, or annulment case or other family law case, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.