Discoveries, Pre-trial & the Trial

The process of going through any legal proceeding is complicated and a divorce is no exception. If you end up on the road to discovery, you’re beginning to understand why a cooperative divorce is so much better. You’re also discovering why it costs an arm and a leg to get a divorce. All the rules and procedures that must be followed are designed to make the whole thing fair and rational, but slooooow the whole thing down.

The point of “discovery” is to have both parties disclose everything relevant to the case so when a trial can’t be avoided no one has an unfair advantage in terms of having more information.

Each party has the right to question the other party under oath. An authorized reporter of the court is always present, to ensure that the questions asked and answers given are recorded accurately — they are evidence — in the event they’re referred to at a later date. Answers helpful to the case can simply be 'read' to the court at trial. Less obviously helpful answers can be used in cross-examination to verify or invalidate testimony. Yep, those lawyers check everything you say and they watch you like a hawk. And if you step out of line with your answers — if your in-court responses don’t jibe with your discovery answers — they jump all over you.

Unfortunately, unlike all those American court dramas, you can’t simply say, “I refuse to answer…” You’re obligated to answer any relevant question. Of course, not every answer to every question you’re asked will be at your fingertips. If you don’t know, or if you have to refer to your sources (tax returns, for example), you can offer an “undertaking” or a promise to provide the answer later.

Pre-trial Hearing
If you just can’t settle this thing peacefully, the next step is the pre-trial hearing. Both you and your ex will be interviewed. A judge may preside, or a panel of lawyers may act as mediators. The issues pertinent to your trial will be rehashed with the hope that the judge or panel can give you some knowledge and insight that will encourage you to settle out of court.

It is at this point that people often have the light come on in terms of what this adversarial approach is costing them emotionally and financially. It can be a real eye-opener, particularly if more than one pre-trial hearing is held.

The Trial
Okay, so you weren’t able to negotiate a settlement during the pre-trial and now you’re in court. Here’s what you can expect.

First, each lawyer will offer opening statements during which they’ll tell the judge what they intend to prove during the trial. Then the plaintiff’s lawyer — the mouthpiece for the guy who originally filed the petition for divorce — delivers his or her case, followed by the respondent’s case during which the lawyer disputes as much as possible in the plaintiff’s case and offers his or her own evidence. Both sides get to butt heads (referred to as the “rebuttal”), and finally, both sides sum up in their “closing arguments”. The judge makes the final decision in writing, days, weeks or, yep, even months later.

Preparing for court is an important part of ensuring you make a good impression. You can’t over-prepare. You should re-read the discoveries transcripts, ask your lawyer lots of questions, and generally appear calm. Easy for me to say, right? Well, I’ve been to court and my general take on it is that it is a little scary but if you stick with the truth you’ll be fine.

Dress nicely. Yes, even in this day and age how you look will make a difference. Women should wear a skirt. Believe it or not there are judges out there who don’t like to see a lady in pants. Yep, these are the guys in whose hands you’re putting your life’s decisions.

Make sure you’re on time and leave your fury and gutter-mouth outside the courtroom. Don’t raise your voice — remember you must appear calm even if you’re seething inside — and you must address the judge appropriately.

Try to look relaxed. Don’t pick your fingers, twirl your hair or jiggle your leg. Answer the question you’re asked, no more. Don’t elaborate. Just a simple answer will do. If your lawyer wants you to say more, he’ll ask you another question. And too much information is deadly if you’re answering the other lawyer’s questions.

Listen to the whole question before you start answering. I know you’re nervous, but in the interest of not saying too much, you need to know what the lawyer is asking you before you can answer. Speak clearly. Don’t whisper, no matter how shy you are. You’ll only be asked to repeat. Speak in an ordinary voice. You don’t have to be more formal than you would be in a business meeting. You don’t want to sound like you’re trying to bafflegab.

For heaven’s sake, tell the truth. If you’re there for the wrong reasons, you’re gonna get found out. If you’re thinking about making your case a little more convincing, forget it. Dishonesty in the courtroom is tantamount to the death of your case. Speak the truth, and speak it ever.

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