Written by Family Law Attorney, Douglas C. Gardner
How To Keep Fees Down While Being Prepared For Trial In Arizona Divorces
Except for the simplest of cases in which the parties have already reached an agreement before hiring me to prepare the necessary paperwork to finalize and formalize their case, every case has a delicate balance that occurs between trying to keep costs down while working toward an agreement, and being fully prepared to litigate the case at trial in the event that the case cannot be settled.
There is no doubt that contested divorce cases are expensive. This is made worse by the fact that divorce inevitably occurs when both parties are struggling with financial concerns. This is made much worse in today’s difficult economy in which home equity has vanished, credit card limits have been reduced, wages have been cut or promised raises frozen.
Good divorce lawyers will work to settle every case. Settlement of each divorce case is to the advantage of the client for multiple reasons. Financially, settlement of a case allows the case to end sooner and avoid the cost of trial. Emotionally, the parties are able to bring the case to finality and begin getting a full night’s sleep, and finally get rid of the constant knot in their abdomen and to let go of the anger and hurt that they have inevitably experienced. Finally, both parties are much more likely to comply with and follow the terms of an agreement that both parties voluntarily entered into, as opposed to a contested order that has been shoved down each parties’ throats at the conclusion of a contested trial.
However, it would be shortsighted of the client and the attorney to simply hope for resolution and eventual settlement of the case and fail to prepare for the eventuality of trial.
First, failing to prepare for trial may reduce the effectiveness at mediation and result in a less favorable outcome in mediation. Good settlement lawyers have effective presentations for mediation showing that the case is organized, exhibits are ready or nearly ready for trial, that the evidence including witnesses and exhibits are ready or will be ready for trial. If the opposing party can see that you are prepared for trial, and ready and willing to go to trial if it becomes necessary, they will have an additional motivation to settle.
Secondly, being prepared for trial includes having all assets and debts identified, and having all contested custody or other matters identified. Having this same level of preparation for mediation ensures that the agreement discussed and reached includes a resolution of each of these issues and an agreement as to the assignment and distribution of all assets and debts.
Finally, a good family law divorce attorney understands that he or she has an affirmative duty to the Court to prepare for the eventuality of trial. Trials happen. Not every case will settle. Some cases will reach a partial settlement of some or most issues, but will have a few remaining issues that must nonetheless proceed to trial. The courts and judges are busy, and the court’s calendar is booked up months in advance. Judged get frustrated and even angry at attorneys who fail to have a case ready for the scheduled trial and ask the court for a continuance. Some judges will even sanction (require payment of a fine or other penalty) an attorney or party who requires a continuance for failure to prepare for trial. Judges understand that some times a continuance of trial is necessary, but require a better explanation than “I am not prepared, I hoped the case would settle.”
While the above paragraphs suggest that the case must be prepared for trial to go to mediation, a good divorce attorney can abbreviate, shortcut, and make some cost savings in preparing for mediation. The formalities of trial are much higher than those of a mediation. For mediation, the potential witnesses need not appear, but the attorneys and mediators can discuss what a potential client would testify to if called. All evidence and documents may not be needed for mediation, so long as the documents reflect an approximation or estimate of the facts needed to resolve the case. The biggest difference for me in preparing for mediation and for trial is that for a trial I need to have the case nearly memorized and have all information on the tip of my tongue and at the front of my mind. Whereas, for mediation, I need only know where to find the information. If your attorney cannot remember your child’s name or birthday at mediation, this should not be a problem. For trial, however, it is important that your attorney knows your child’s name, age, etc.
One last comment, even if you do not believe that your case is likely to settle, it is often beneficial to attend mediation. Even if your case does not settle completely, many times a partial agreement can be reached. A partial agreement can reduce the issues that need to be presented at trial, which reduces the attorneys time (and your cost) preparing for trial. I have also settled many cases in mediation in which my client and I were both pleasantly surprised that the case actually settled. Even when a case does not settle, participating in mediation is a very useful exercise. It requires the client and attorney to simulate preparation for trial. It allows the client and attorney to discuss the issues that need to be presented at trial. It allows the client and attorney to see what holes or missing information or documents are needed to prepare for trial. When I am in mediation, I keep several notepads simultaneously. One notepad is for items being suggested or agreed to during the mediation. I typically have a notepad on which I keep notes of additional documents or information that need to be obtained to be successful at trial, potential witnesses to include at trial, expert witnesses that may be needed, additional strategy to employ prior to trial, and other various thoughts and brainstormed concepts that come to mind when focusing on the trial for several hours of mediation.
As your cased progresses forward, you should understand that your attorney has an affirmative obligation to begin preparation for trial. Your attorney should, however, balance out depending upon the intensity and animosity of your case the need to prepare for trial and the importance of working to keep fees down. Always feel at ease approaching this topic with your attorney and asking what steps are being taken to be prepared for trial, and what steps are being taken to try and keep fees down at the same time.
If you need an attorney to move your pending case forward, or if you are contemplating filing for divorce, or if you are unhappy with your current attorney and the direction your case is headed, please feel free to call us today.