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NOTE: The following blog posting is adapted (i.e., I added thoughts of my own and changed some content) from some materials I came across online that were presented by the Honourable Madam Justice Cheryl J. Robertson, Superior Court of Justice, Family Branch,  (Assisted by Martha Butler, judicial law clerk Superior Court of Justice, East Region) at the Frontenac Law Association 2008 Kingston and the 1000 Islands Legal Conference October 3 and 4, 2008.

Many clients and potential clients ask me about what it takes and how much time it takes to prepare for trial.  The answer may surprise and upset you, but here it is:

While proper preparation is crucial, it can also be kind of fun if you don’t procrastinate.  Advance preparation helps you not only identify the strengths and weaknesses in your case so that you see your best arguments clearly and make them as succinctly and persuasively as possible, but will also put you in a better position to critically analyze material from opposing counsel.  That kind of preparation leaves you confident and more relaxed, and the court will sense that at trial.

Superior preparation is also of great assistance to the court, will help you secure a positive outcome, and may even reduce your costs.

You must adhere to these milestones.  You will be tempted to leave everything to me, but resist such a temptation; I cannot do this all myself.  I won’t even try.  You must be actively engaged in the preparation process up through the last day of trial.

1. Financial disclosure should have been made, offers to settle have been exchanged, but issues are still not resolved.  Make sure you book enough time in your calendar for the trial and trial preparation.

At least (notice I state “at least,” not “try hard”) 90 days before trial:

a. Prepare your exhibit book:  Have your exhibits organized in the order they will be needed during your examination.   Prepare four copies of your exhibit book: one for yourself, one for opposing counsel, one for the judge to mark up without altering the official court file, and one for the client.

2. At least 45 days before trial:

Prepare your pretrial disclosures.

a. Know case law and prepare your brief of authorities:  Review all case law, including beneficial and detrimental cases.  Prepare a brief of authorities with a detailed index organized by area of law.  Have a separate file of detrimental cases, and go over them with the client to prepare for cross-examination so that you will know how to distinguish them.  Perhaps provide a CD with an electronic version of the cases in your brief.

b. Prepare your trial brief.  Print four briefs: one for yourself, one for opposing counsel, one for the judge to mark up without altering the official court file, and one for the client.

c. Prepare the following disclosures for the opposing party:

i. the name and, if not previously provided, the address and telephone number of each witness, separately identifying witnesses the party expects to present and witnesses the party may call if the need arises;

ii. the designation of witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

iii. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

d. Prepare any updated financial statements (which must be filed with the court at least 30 days before trial).

e. Know case law and prepare your brief of authorities:  Review all case law, including beneficial and detrimental cases.  Prepare a brief of authorities with a detailed index organized by area of law.  Have a separate file of detrimental cases, and go over them with the client to prepare for cross-examination so that you will know how to distinguish them.  Perhaps provide a CD with an electronic version of the cases in your brief.

3. At least 30 days before trial:

a. File Proposed Stipulations of Fact and/or a Motion to Admit, canvassing as many facts as possible.  This will bring you into the weeks leading up to the trial with a clear understanding of what you need to establish.

Pretrial disclosures

b. Filed and serve your exhibit book.

c. Prepare and file your trial brief.

d. File the following pretrial disclosures:

i. the name and, if not previously provided, the address and telephone number of each witness, separately identifying witnesses the party expects to present and witnesses the party may call if the need arises;

ii. the designation of witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and

iii. an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying those which the party expects to offer and those which the party may offer if the need arises.

e. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under subparagraph (B) and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under subparagraph (C). Objections not so disclosed, other than objections under Rules 402 and 403 of the Utah Rules of Evidence, shall be deemed waived unless excused by the court for good cause shown.

f. Any updated financial statements must be filed with the court before trial.

4. At least 14 days before trial:

a. Prepare to be a witness:  This may be the most time-consuming step.  A general rule is to spend twice as much time preparing to testify as you will likely spend on the stand.  You may even want to go to the court and watch your judge in real hearings or trials before your trial takes place.   Consider organizing your examination in chronological order.

b. Prepare to cross-examine the other party:  Your client likely does not need to be present, but you may wish to invite them to send you a list of questions they would like to have included.

5. At least 10 days before trial:

a. Although you will likely have already made previous offers to settle, the offer you make just prior to the trial is likely to be more informed on the case law and risks and benefits of proceeding to trial.  You may wish to prepare your final offer to settle and serve it at least 10 days before the trial.  Consider separating the parenting issues from the property issues to avoid going to trial on the parenting issues.

6. At least 7 days prior to the trial:

a. Prepare your opening statement:  Draft an opening trial statement and file it with the court several days before the beginning of the trial.  In it, you should summarize the evidence you will present and the issues in dispute, including preliminary procedural issues.

b. File any remaining documents:  Last minute documents you may need to file include updated financial and net family property statements.

Other trial preparation matters you may find helpful:

Documentary evidence at trial:

To succeed at trial, master the rules of evidence and prepare thoroughly, keeping in mind your theory of the case and what the judge needs to know. Understand what you need to prove or rebut for each issue, and how best to prove it. Knowing what you need to prove will help you decide what evidence to present, but how you organize your documents can also be persuasive.  Consider using charts, tables, and summaries.

1. Examinations from discovery

a. Be sure to read transcripts from examinations for discovery to determine whether you have fulfilled undertakings.

b. When used appropriately, reading in excerpts from the examination for discovery can be very useful, especially in the case of prior inconsistent statements. Be sure that the statement is not taken out of context and that it is otherwise admissible. Be sure that opposing counsel also considers context when reading in excerpts.

2. Request to admit facts or documents

a. When you receive documents, try to obtain an admission of the authenticity of a document well before trial to save time.

3. Be creative

You may be able to find evidence supporting your claims in unusual places. Employment, school, and medical records can be all be very useful, but be sure that you get the evidence admitted in compliance with applicable court rules.

Effective Advocacy Tips:

1. Be prepared and courteous.

2. Summarize.

3. Do not forget that the rules of evidence apply to family law as much as they do to other areas.  Keep this in mind when trying to admit documents and serve experts’ reports.

4. Maintain control of your emotions.

5. Cross-examine only on important points, not on every detail from examination in chief.

6. Refer to case law in support of your positions, not just “commons sense” and “reason”—these are subjective standards that vary from person to person.

a. Do not quote long passages from case law or affidavits. Know the sources well enough to provide a concise summary and refer the judge to the precise location of the information in case they want more detail.

7. Provide a typed summary of the relief you seek with spaces for the judge to take notes.

8. State issues at the outset to allow a judge to focus his or her attention

9. In preparing your materials, think from a judge’s perspective. Organize materials in a manner that would best allow a judge to read and understand them.

10. Do not misrepresent facts or move beyond affidavits. It may seriously affect your credibility.

11. If you are asking a judge to impute income, provide enough information for the judge to do so in an informed manner.

12. Offer to provide case law, factum and submissions on a CD or email to court for judge’s ease of reference.

6 Tips on Family Law Advocacy

Despite the fact that few family law cases get to trial, strong advocacy skills are important from the earliest stages, as they can help shape pleadings, and determine the outcomes of case conferences and motions.

1. Theory of the case

a. Prepare a concise theory of your case at the outset. Make sure your pleadings actually match your theory of the case, instead of relying on possibly vague or tangential precedents.

b. The theory of the case should set out briefly (in about three sentences) what the case is about, what you’re seeking and why, and the main “factual areas” supporting what you seek.

2. Theme

a. Use the human elements of your case to bring the case to life. A theme is the emotional element of a case that will make your arguments compelling. “The theory is what moves the mind, while the theme is what moves the heart.”

3. Have the theory and theme ready from the beginning

a. Have a theory and a theme ready while you draft the pleadings and use them to shape the pleadings.  Your pleadings should be your template for your file, so it is worth the effort to put in the extra time at the outset. It will help with conferences and motions, but may also help you to discover important facts with your client.

4. Written advocacy is the basis for oral advocacy

a. Because your oral arguments must be grounded in your written materials, be sure that your written materials tell a story with a beginning, a middle and an end.

5. Keeping to your theory is the most important rule in family advocacy

a. While some rules in cross-examination may occasionally be broken (such as asking open-ended questions, not knowing the answer), as long as a strong and simple theory of the case is firmly in mind during questioning, your point will come across.

6. Rely on your strong points

a. If you only need two points to make your case, don’t make up additional ones to fill space. Be confident with what you have.

7. Don’t be afraid to take a risk

a. Trying your case to a judge is already a gamble in and of itself.  Your whole case is subject to the decision of one person, and that decision is made after a day or two of trial.  You cannot know how the judge will be feeling on the day of trial, what the judge will find persuasive, etc.  While you must be as prepared as you can, realize that you can never know, avoid or control all the risks.  So once you have done all you can to prepare, don’t worry over the unknown.  Fortune favors the bold.

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