How To Win Your Family Law Case

Our legal system is designed to create winners and losers, assign responsibility for bad behavior and punish offending parties. While “winning” is a relative concept, here are 5 ways you can be better prepared from the start of your family law case to give you the best chance of reaching your goals.

By some measure, nearly 90% of all cases in our legal system settle out of court. Knowing this does not mean that parties to a lawsuit, whether it be in Family Law, Criminal Court or Civil Court, can rest on their laurels and wait for a positive settlement. The reality is just the opposite: good trial preparation will almost always help reach a positive “out of court” settlement.

Have a plan: Lawyers call this the “theory of the case”. It is simply the reason why you should win. Your plan will guide everything you do, from preparing for the temporary hearing, requesting discovery documents, taking depositions, negotiating during mediation and finally preparing for, and conducting the trial. I am always surprised at how many lawyers go to court and have no plan, or theory, as to why their client should win, but rather disparage the other party with the hope that the chips fall their way.

Early use of subpoenas: The Family Law rules, at least for now, require that the legal process for exchanging information in a lawsuit (discovery) can only be started once a court order has been issued.  As a result, people often feel unprepared for a Temporary Hearing (which is often referred to as a “trial by ambush”) because a temporary hearing will almost always be scheduled before a discovery order has been issued. But this does not mean you have to go into a Temporary Hearing “blind”.  Once a lawsuit has been filed, the rules permit a party to issue subpoenas to compel the disclosure of information from third parties, in spite of the fact that no order of discovery has been issued. 

Recently we believed an opposing party in a case was lying about her income as a way to get more child support. A temporary hearing had been requested by the other side and insufficient financial information had been voluntarily exchanged up to that point. As a discovery order had yet to be issued, we could not require wife to provide us documents that we needed to establish her true income. We subpoenaed Wife’s employment records and lo and behold… wife was lying to us.

Proper use of affidavits: Once a Temporary Order has been issued by a Family Court judge, the terms of the Order may be in place for up to a year until the matter is finally resolved. As such, a Family Law Temporary Hearing must not be taken lightly. Affidavits must be prepared appropriately, they must be accurate and supported by corroboration. Numerous Affidavits that simply repeat the same story over and over will not impress a Family Court Judge and give you the best chance to meet your goals.

Targeted discovery: Once disclosure of information has been ordered by the court, focus your requests to provide you with the evidence you need to support your plan: the theory of your case. Often times lawyers simply have a paralegal prepare “standard discovery” asking for the same things they have asked for in 1000 other cases. But all cases are unique and not only will “standard” discovery requests provide you with a lot of information you do not need, more importantly you will likely fail to request the critical evidence that you do need to support your theory of the case.

Mediation: For over 90% of litigants in Family Court, this is where your case will end. If you have plan, did well at your temporary hearing, engaged in an efficient, targeted discovery process, and keep an open mind, you will have a good chance of meeting you goals. Keep in mind that this is a time for compromise. Your mediator is a neutral and you should listen to him or her as they comment on the facts of your case. A good mediator has seen a lot, and will often let you know what they think of your evidence and your chances for total victory in family court. This is valuable “inside” information that you should not disregard. If the mediator has certain beliefs about your case upon first impression, then it is likely that someone else may as well- a family court judge.

The key to Family Law litigation is efficiency. You must have a plan and then go about building your case in an efficient and streamlined manner. If your attorney is up to date on the latest technology, such as, all the better because they will be working with you in a targeted and cost effective manner to make sure you have the best chance to meet your goals.

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