Should I Go to Trial?

Spend any time watching American television or movies and you will witness scenes filmed inside a Courtroom. Sometimes they are filmed in a soundstage and other times in an actual Courtroom. No matter the location they convey the same message. Everything else failed in a case and now it is time for the exciting conclusion that is your trial. The lawyers get together in their perfectly pressed (and well fitting) suits, witnesses are called, evidence is argued, and eventually Ben Matlock gets a witness to admit they are guilty. These moments, colloquially referred to as “Perry Mason” moments, are thrilling on TV. I hate to be the bearer of bad news, but they almost never happen. If they do happen, they are never as exciting as on TV.

A real trial is nothing like TV. The closest thing a person will get to the real trial experience (outside of jury duty) is watching live criminal trials. Even then, they are bolstered by expert commentary about procedure and events. All the while a rolling ticker runs at the bottom of the screen providing updates about the case.

Most family law cases do not go to trial. Commonly attorneys will tell you that only 5% of cases go to trial while the other 95% settle. I have no idea where that statistic came from, but it is used by nearly every attorney I know in every jurisdiction in the country. I am not sure if that lends any credibility to the statistic, but in my experience it is pretty close. The reason is simple. Trials are very expensive and the outcome of a trial is at the discretion of the Judge. For these reasons, many family law litigants avoid going to trial.

As a family law litigant you are very likely to spend some time in court. This will usually be at pretrial hearings (called Request For Order hearings) to address temporary issues about custody, support and/or attorney fees. Pretrial hearings last between 20-40 minutes and do not require the same amount of preparation and cost necessary to go to trial. Your testimony is generally contained in a declaration. That means neither party is likely to take the stand to testify. A majority of the time spent during a pretrial hearing is the attorneys arguing the merits of their client’s position.

Sometimes there is no option except to go to trial. One reason is there is a factual issue in dispute that the parties will not be able to settle upon. In this case, the parties realize that the only way to resolve this issue is to go to trial. I have found this generally involves a threshold issue that impacts the remaining issues in the case. As an example, the date of separation of the parties is a threshold issue that will impact how assets are characterized, how assets are divided, the amount and duration of spousal support, as well as attorney fees. Resolving this issue early will actually allow the parties to settle their case more effectively.

The other time you are almost guaranteed to go to trial is when one parent requests an order allowing the children to move out of state. We have blogged on this before, so if you are facing a move away, you should check the articles out. The reason move away cases go to trial is that they are binary operations; either the children live with mom in one state (or city) or they live with dad in another state or city. There is nothing to settle.

Read More About Move-Away Requests

Making the decision to go to trial is difficult. It will require significant amounts of time and money on your part and the outcome is never guaranteed. In my follow up blog I will discuss what it is like preparing for trial and what you as the party should expect.

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.


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