Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys from Tampa Bay to Orlando.
In this edition, we discussed the practical issues facing our clients should their divorce or custody case go all the way to trial. We will be taking on the logistics of a trial that can be expected, the risks and rewards involved, as well as the emotional toll trials can take.
To get a feel for what you might expect at trial we talked we talked about these issues with a legal team gathered for the day. Here is our discussion:
What can I expect during a divorce or custody trial?
First of all, you don’t have a judge. It is a bench trial so you only have a judge. But you do call witnesses and you do have objections. It’s very similar to a criminal trial in that way. You also have an opening statement and closing statement that is standard.
It’s extremely different than in a criminal setting people might be more familiar with in terms of a jury trial. It’s trial by judge not trial by jury. Some of these trials last a couple of hours, some of these trials last days, some can even last weeks. It all depends on the issues that are before the court and how large each person’s asset portfolio may be. Then there are opening arguments of which the petitioner gets to go first and provide the background for the case and the issues to be considered. Then the other side also gets an opening statement opportunity. Next the petitioner can call witnesses and ask questions then the respondent gets to ask questions of the witness. The respondent then is gets to call witnesses. That is followed by closing statements on both sides.
A divorce or custody trial is a situation where witnesses are going to be presented. There is going to be evidence that is presented. There are going to experts presenting in some situations. It is a process by which all bets are off, everything is on the table, and the line has been drawn in the sand. At that point, you fight for what is required. A trial is a very stressful thing. It involves a lot of emotion and a lot of work. It can be quite lengthy, some can last for days. It is a situation where both parties are in the arena and they are going to throw their best punches to get what they want accomplished.
A trial is very difficult on parties. It is a very time-consuming and lengthy process getting ready for it. Procedurally, it is somewhat similar to a criminal trial. That’s usually discussed with the client before we go in. One person gives their side. Then the other side gets their chance to attack that. Then the other party gives their side and the other attorney attacks that. And then it is turned over to the judge for an ultimate decision. The difference between a criminal trial and family trials is that there will not be a jury.
Would you say a trial is the most difficult route to go for a client to go in a divorce?
It is very grueling. I try as best as I can to explain to people that it is difficult. Obviously, it is a lot more expensive than if the case were settled. There is significant uncertainty in any trial. In essence, you are leaving all of the issues up to a judge to decide. It will be on all issues, child custody, time-sharing, what is going to happen to the house, what is going to happen to the furniture, the vehicles, retirement, everything. While we have bright judges who work very hard it really is a question mark what is going to happen to the things many times people have worked their whole lives to obtain. So it is very uncertain. It is frankly physically grueling on people because of the tension and anxiety. So we try to avoid at all costs going to trial. And judges will often tell the parties before a trial they will try to make the best decision and probably make a decision that neither side will like.
The stresses of trial are great in terms of risk but also there can be a great reward. Some people come in and say I’m going to trial no matter what. But you have to think about that. If your case is strong, obviously you are going to put your best foot forward. However, at the end of the day, it’s not the two parties that are going to decide what will happen from that point forward. Instead, you are asking a judge to determine based upon the evidence to make a decision about your life and how it is going to proceed from that point.
How do you prepare a client for the stresses of a trial?
First, I explain process. Leading up to a trial you do have several hearings so the clients become very involved in what is happening. Preparation is key so you can anticipate what is going to happen. A trial is a very long and can be exhausting. Just be patient and it will come to an end. There is a light at the end of this and it amazing how I often see families thrive once these issues are settled and they get into co-parenting and putting the children’s needs first, instead of being angry with each other. It can work.
I’ve found that most of my clients are very, very nervous going into a court setting, or going into a trial. Most people do not have experience in going into a courtroom. They have never been in front of a judge and it’s very nerve-racking. I always tell people that’s why you hired me so I can be the one who worries about your issues and stresses over doing things properly.
I make sure to meet with clients to prepare them. We go over the questions to they can be prepared and give them an idea of what it is going to be like in trial. It is important for them not to have their answers completely rehearsed because judges don’t like that. Instead, it’s important to be natural and have it come from the heart. A lot of time my clients get extremely stressed when the other side is speaking and they can’t respond automatically. So if I tend to see my clients get a little heightened in that situation I will often put my hand on their lap or give them a look that it is ok.
Coping with the stress of a trial is something that is very individualistic. Some people do not have the stress of going to trial. They are ready to go having been preparing for it for years and are looking for a resolution. I will say that going through trial for many of my clients is an exhausting process. You need people to be there to help you understand that you are in the right. And what you are putting forth is the best thing for you and your family.
I tend to give them the advice I would give anyone facing a big day or a big event. They need to get a good night’s sleep and take a deep breath. Generally, I tell my clients in order to calm their nerves that we are just there to tell a story. A lot of times you will see people get so nervous when testifying that they forget to give answers that they know are true. So I tell people to envision that we are sitting in a living room telling a story. It’s my job to know all the rules. It’s my job to know when to speak up.
I try to go over all of the questions and answers that may be coming at them. I think of anything the opposition may present and make sure they are able to properly respond to the questions of opposing counsel. A lot of times my clients think I am trying to think more about what the other side is going to do, but that is the only way to prepare for cross examination. You have to think about what the other side’s game plan.
Is it important that your attorney has experience at trial?
Absolutely. That is why I like to practice marital and family law because you get to know your judges. It’s nice to kind of get to know your judge, to know where they would go in a situation. And also they know your reputation. I am very clear about being completely honest with the court. I do not make misrepresentations to the court just for the benefit of the client. I’m in front of these judges for years and so my reputation is important to me.
I cannot imagine anything more stressful and anything that can be more rewarding than going to trial. Hopefully I will never face that kind of experience. But if I do – I hope to have the whole bunch of you on my side! That wraps it up for today. Thanks to the Ayo and Iken legal team for pitching in today. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !
Our specialized content, video, and other informative media are based on input from Ayo and Iken team members, outside guests, former team members of Ayo and Iken, independent journalists, and subject-matter authorities. The opinions expressed do not necessarily reflect the official position of Ayo and Iken. Attorneys that are not current team members at Ayo and Iken may be reached through their member listing on the Florida Bar website: www.flabar.org