Preparing for a Family Law Trial

Make Time to Prepare

The first step is to make time to prepare for trial.  Sometimes it appears to me as if the lawyer didn’t prepare at all.  I have seen lawyers stumble along without any apparent plan, as if unaware of the elements of Chapter 61, Florida Statutes, which they need to prove, without essential evidence or witnesses, offering hearsay and incompetent witnesses.  But thankfully that does not describe most family lawyers. 

Review the Law and the Pleadings

Preparation can begin with a review of the law and the pleadings.  Go to the petition, the answer and counterpetition, or the pending motion.  These should have outlined the essential elements which must be proven.  They must also have stated the relief that is being sought.  Upon the objection of the opposing party, the court cannot give relief for something which was not in the pleadings.  After many months of discovery, it is easy to overlook this most fundamental matter.  So go back and read the pleadings.  If necessary, seek leave to amend.

Review the relevant family law forms, especially Final Judgment and other relevant orders.  These summarize the law and are focused on what the judge will be looking for.  They are useful for preparation for trials.  Review the relevant statutes and case law.  Some of these are noted in the forms and the comments to the forms.

As you read some reported cases with similar facts you will often see evidentiary issues of proof that are common to such a fact pattern.  Make note of those.  Preparation includes anticipating objections to evidence.  Review the applicable rules of evidence such as hearsay.  Often there will be financial records, personal records, letters, telephone texts, snap shots and videos, social media posts, and the like which you and the other party have identified as relevant during discovery.  Is the opposing counsel agreeable to admission?  If you cannot get a stipulation, can you lay the foundation to admit these? [1]   Review the Code of Evidence and prepare a colloquy of questions for admission.  If you are opposed to admission, prepare authorities to support your objection. 

Prepare an Outline

Prepare an outline of the elements and the proofs of the case and build upon it.  The presentation of the case usually starts with a chronological story of the family:  the marriage or partner relationship, the history of education and employment of the parties, the births of children, the acquisition of assets and debt, and culminating in the situation as of the filing of the action. Then move to details following the “PEACE” outline.  The judge will decide the final judgment in a divorce case in the order of P.E.A.C. E. which stands for Parenting plan, Equitable distribution, Alimony, Child support, and Everything else, such as attorney’s fees, name change, and passports.

Organize the Evidence

Once it is established what needs to be proven, it is time to turn to how to prove it, or in the defense of the case, how to show it is not proven.  Review the investigation notes and discovery to catalogue what evidence is available on each element of the cause of action. Different witnesses may be necessary for different elements.  Usually the petitioner will be the first witness in order to give the story of the family.  If other witnesses need to be called out of order, the opening statement can give attention to this.  Other witnesses could include eye witnesses of an event such as domestic violence or child neglect, persons knowledgeable about the history of parenting or the family business. The lawyer needs to talk to these people and make sure they can be qualified to testify before it is too late to search for other witnesses.

If it is a family law case involving minor children, there will need to be witnesses to show that a party demonstrated capacity and disposition to parent per section 61.13(3), Florida Statutes.  Testimony, photographs, emails and texts of the parties, records of the parent’s participation in the child’s school, health care, and community activities should be prepared.  All 21 factors of the statute should be covered.  Typically there will be efforts to introduce hearsay testimony, photographs, reports, affidavits, print outs of social media, texts, and emails.

If the issue is equitable distribution, alimony, or child support, then financial affidavits, tax returns, pay stubs, bank statements, broker statements, real estate appraisals, and other financial records are relevant.  Many times I am presented with a handful of these from persons without lawyers or with a three-ring binder full of these by lawyers.  Often this is not complete enough for a judge.  I am asked to reduce these to an accounting.  I did not take an accounting course in college, but even if  I did, I cannot work with a pile of records that are incomplete, and I do not have time to do so.  When I am writing the final judgment and looking at my notes and the evidence I often find there is some piece of data missing.  I may not be able to calculate total income, or child care expense, or the party's health insurance premium versus the children's portion. 

Presentation of voluminous writings such as financial records can be made simpler by utilization of a summary per section 90.956 of the Code of Evidence.  If you have been served with a notice of intent to use a summary, make sure you examine the summary and the originals or duplicates of the data from which the summary is compiled. 

If the parties have assets and debts to be divided, prepare to prove the value of each asset and debt on the date of filing.  Sometimes I'm given a description of a lot of personal property with vague description and mere guesses about value.  The law requires a family judge to list each asset and debt, state an amount of its value at one point in time, add it all up, and split it equally.  Many times I spend more time on that than on parental responsibility and time-sharing, alimony, and child support altogether.  A more persuasive and effective presentation of financial information must be user friendly: a comprehensive summary which has some back-up information.  When the stakes are high enough, hire a forensic accountant.  If that's not feasible, make a summary that is complete and logical.  See 90.956, Florida Statutes.

Prepare the Witnesses

The witnesses must be prepared for trial, too.  There’s an old truism about examination of witnesses: never ask a question unless you know what the answer will be.  It is very important to discuss with each witness what the questions will be and find out what the answers will be.  You do not want to be ambushed by your own witness.  Witnesses will be more comfortable as well and answer with confidence when they know what to expect. 

When conducting the examination of the witness have a plan.  Follow a logical sequence such as chronological order or the elements which define the subject matter.  For example, if the issue is parenting, follow the sequence of 61.13 (3) (a) through (s).  Take the time to outline the examination and write out important questions. Explain to each witness the type of facts you are looking for.  Section 61.13(3)(j) says: “The demonstrated knowledge, capacity, and disposition of each party to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.”  Discuss that with the witness until you and the witness have a common understanding of the questions and the answers.  It may be best not to have your client present while you meet with witnesses.  Definitely, do not prepare your client in the presence of others as this will not be privileged attorney-client communication.

Prepare Expert Witnesses

Proof sometimes requires expert opinions. Testimony from psychotherapists, physicians, substance abuse counselors, appraisers, accountants, business evaluators, and other experts may be appropriate.  Attention to the Code of Evidence regarding opinion testimony, privilege and hearsay will be important.  In 2013, the Florida Legislature adopted a more stringent qualification for expert testimony by amendment of section 90.702, Florida Statutes.  It remains to be seen how the courts will interpret this.[2]  Expert analysis and testing may be necessary.  Make sure it is the right expert.  In other states where Daubert [3] has supplanted Frye[4] major efforts have been put into disqualifying experts, although the appellate courts have applied Daubert’s requirement of reliability with less rigor than with the “hard sciences.”  So close attention must be given to selecting an expert with relevant qualifications and with an opinion that is based on relevant procedures accepted in the profession, following ethical standards, and using common psychological tests as they were designed to be used.[5] 

Be careful about using a treater to give opinions.  A treating psychotherapist has legal and ethical restrictions on becoming a forensic witness.

Prepare the examination of the expert with the expert.  You will learn about the subject matter and what the witness can and cannot say.  You can instruct the expert on legal terms and how to state the opinion testimony in a legally sufficient manner.  The testimony should start with qualifications.  A curriculum vitae is placed into evidence.  Then establish the foundation of the opinion.  What information has the expert collected, reviewed, or created by interviewing, testing, or analyzing? This is the foundation for the opinion. Has the expert formed an opinion to a reasonable degree of scientific/medical/psychological/accounting likelihood. Some will not say “certainty”?  Since the burden of proof is the greater weight of the evidence, “more likely than not” is legally sufficient.  Often in family cases the expert will have a report. This will contain hearsay. This can be placed in to evidence if the expert was appointed as a social investigator per section 61.21, Florida Statutes.  A guardian ad litem cannot give hearsay testimony.

A comment about presentation 

Coming from a personal injury trial practice, and serving in family court now, I see a contrast in the visual presentations.  Jury trial lawyers use blow ups on boards, writing on flip pads, computer projections, and even individual monitors for the witness, judge and jury to show not only photographs and videos, but witness examination quotes, power point presentations, and documents.  This can be done in bench trials, too, not only to show photographs and videos but also to display documents and summaries of evidence as the witness is examined.  It can be effective for opening statement and closing argument.  It will keep you and the judge focused.  Make a copy of the presentation in a reduced 8 by 11 inch size for the judge.  It is a way to preserve your argument.

Many times a lawyer is questioning the witness about photographs, financial records, time-sharing calendar, telephone log, texts, emails, et cetera, and the judge is struggling to follow along.  Consider a projection.  With current technology it is cheap and easy to do.  Much cheaper than big printed boards, and flexible enough to change as the trial progresses.  It is also makes persuasive impact if done well.  Consider the use of methods to emphasize facts such as charts for key facts and numerical calculations on flip pads.  If nothing else, try to reduce your client's case to a one page summary of ultimate facts.  If you cannot do that, you have not focused your case.

Attorney’s Argument

Finally, some thoughts on opening statement and closing argument.  If possible, write them out entirely.  At least, make an outline.  When you write it down, that not only helps you to include all the essential information, it helps you exclude the unnecessary baggage.  Put yourself in the fact-finder's shoes.  As a judge, I am thinking at the end, "What should the judgment say?"  I do not need you to repeat the evidence and shout about the justice of your cause. I need to know what you think the final judgment should say and why.  I have guidance from the law.  There are required findings, presumptions, definitions, and even formulas to guide me.  Tell me specifically how the evidence met those standards or did not.  Relate the evidence to the form of the family law forms of judgments. 

Jury trial specialists not only write down their closing argument, they blow up the jury instructions and verdict form on a board or two and fill it in during final argument.  It makes it clear what the parties are asking the jury to do.  In a bench trial, the judge has been measuring the evidence against legal standards all through the trial.  Show the judge how the evidence filled in the blanks in the form final judgment.  Be specific.  It is appropriate to motivate the fact finder with some well-constructed rhetoric, but it is not enough.  A logical, legally sound, evidenced-based presentation is required.  That takes thoughtful preparation which is written down.  Outlining the closing argument early in your trial preparation is also a good way to focus you on what evidence you need to present.  If you understand what the goal is, you will have a better chance of reaching it. 

[1] Holt and San Pedro, “Social Media Evidence: What You Can’t Use Won’t Help You”, The Florida Bar Journal, Vol. 88, No. 1, page 9 (January 2014)

[2] See, for example, Conley v. State, 129 So.3d 1120 (Fla. 1st DCA, 2013) (admissibility of evidence of PPG test in proceedings on remand was required to be determined according to 90.702 adopted during pendency of appeal).

[3] Daubert v. Merrell Dow Pharms., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

[4] Frye v. United States, 293 F. 1013 (D.C.Cir.1923)

[5] Nelson, Clark, and Delipsey, “Use and Abuse of Mental Health Experts after Daubert,” State Bar of Texas, 28th Annual Advanced Family Law Course, Ch. 37 (2002).  www.aaml.org/library/article-category/trial-techniques-and-procedure 

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