This blog is a follow up to a previous blog titled “Should I go to Trial.” If you have not read that blog it is worth reading, and not just because I wrote. There are many factors you should discuss with your attorney before you go to trial. The two main factors are the amount of time required to go to trial and the cost of doing so. Each of these is unique in every case so my earlier blog does not go into them. Before you ever set a trial date it is imperative you discuss this with your attorney.
In this blog, I presume you had that discussion and decided a trial was the best course of action. This blog will discuss the time involved and the expense involved in a trial. I will do another blog that discusses the ins and outs of being in trial. (Hint for those who did not read my earlier blog…its nothing like on TV.)
The time commitment is an issue that often is not discussed. For a party, the trial day will begin at 8:30am and end around 5:00pm. Depending on how many days your trial is scheduled for, that means you will have to take days off work. There is also the amount of time you will need to be available to your attorney in the weeks and months leading up to the trial. That means being available by phone and email. Remember you know the facts of your case better than anyone else in the world. You lived the facts after all. Going to trial is a significant time commitment on your part. If you are not up to, you should reconsider your strategy.
For attorneys the time commitment is an issue as well. The reason is simple, family law attorney generally bill by the hour. A trial day for any attorney will begin well before they walk into court and will end long after the court recesses for the day. After a party goes home for the night, an attorney is busy preparing for the next day. Trials are more like living organisms than one would expect. You need to be flexible and open-minded during a trial as strategies must be able to adjust to the evidence presented. I do not mean a strategy should be abandoned wholesale, but if you are not flexible and creative based on the evidence, you will be stuck with an argument that does not account for all of the evidence raised (and often more importantly, not raised) at trial.
But all of this work begins long before your attorney ever walks into a courtroom. Johnnie Cochran once said the key to being a successful trial lawyer was “preparation, preparation and preparation.” As a rule of thumb, for each day of trial you should anticipate a minimum of 2 days of preparation. That means if you have a 3 day trial your attorney will need at least 6 days of preparation for trial. If the issues are more complex or fact driven, expect that number to rise to 9-12 days quickly. The reasons for this are what make trials unique. Every bit of evidence to support your position must be either admitted as part of a document (exhibits) or by way of testimony of a witness on the stand. Determining how you will get all of this information before the court is like putting a very complex puzzle together. The only difference is that the pieces keep changing shape and the picture is not always clear on the front of the box.
All of this preparation costs money. Using the example of a three day trial above, when the minimum of 6 days of preparation is accounted for, a party is looking at a minimum of 9 days, of 8 hours per day, billed at $350 per hour. The costs necessary just to take the case to trial is $25,000, and remember that is a minimum. This does not account for all of the discovery, the depositions, the experts and other associated costs necessary to obtain the evidence you need to present at trial. This is just the organization and presentation of that evidence. The cost of going to trial is enormous because the amount of work necessary is just as large.
The reason for all the time and money is simple…the stakes at trial are extremely high. You get one shot at a successful trial. Sure you can appeal the decision, but an appeal is going to be worthless if you did not present a good case at trial.
What makes this so much more difficult for family law litigants is the often overlooked fact which permeates every aspect of your case…Judges are just human beings and human beings make mistakes. You could prepare the perfect case, make the best argument and still end up losing your trial. Judges, no matter how smart or dedicated, are not imbued with the powers of the divine. They are just ordinary people making the best decision they can based on the case presented to them. Never is this more difficult than in custody cases where Judges are often tasked with deciding between two equally significant results. When faced with two good parents who love and care for their children, how does one decide what is best for the children?
So here you are, you have done everything by the book and yet you ultimately lost your case. This is why every party should consider whether their case should go to trial and face a Judge or settle your case out of court. The answer, much like preparing for trial, will not be easy and should be discussed with your attorney.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding trials in the family law setting. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.