How to Prepare for Trial
The Law Office of Erin M. Wilson LLC strives for an amicable settlement when resolving clients' family law cases, yet sometimes settlement is not possible, and trial becomes necessary. Preparing for trial can be a long process, so it is important that you, as a client, know what to expect leading up to trial.
Before trial, you should expect to pay a substantial trial retainer fee to the attorney working on your case. A retainer is the client's payment to the attorney working on their case. Under Illinois Rule of Professional Conduct 1.15(a), the retainer payment will be held in a trust and used to cover the costs of your legal services for trial.
Leading up to trial, both you and the other party’s attorneys can and often will have continuing settlement negotiations. Trial is very costly, and exchanging offers and counteroffers to try and reach a mutually agreeable resolution outside of court can be very cost-effective. However, both sides must compromise and agree to prevent trial.
In a divorce case, your attorney, in advance of trial, will prepare settlement documents for your case. All cases will have a Martial Settlement Agreement (MSA), which addresses the financial aspects of the divorce. There will also be an Allocation Judgment if there are minor children shared by the parties. Your attorney should collaborate with you to determine which terms you want to propose in the MSA regarding the financial and the Allocation Judgment regarding the parenting matters. Once your positions are outlined in these settlement documents they can be sent to the other party to see what terms are agreed and what remains at issue. Any issues that remain and are not resolved will be determined by the judge at trial.
Trial preparation is a long and tedious task. With your help, your attorney will need to gather evidence, take depositions, determine who should be called as witnesses, and a general trial strategy should be created.
Before a case can go to trial, both spouses go through the discovery phase, which is the process of exchanging information and evidence. The discovery process assists in uncovering information as well as updating relevant information.
The most common pieces of evidence that attorneys will use are:
Financial records: Tax returns, bank and account statements and pay stubs;
Property records: Deeds, mortgage statements, appraisals;Communication: text messages, social media posts, emails;
Documentation: children's records, police reports, hospital records, photographs, and recordings.
Typically, these documents are requested through common discovery requests, like a Notice to Produce, Standard Interrogatories, and Requests to Admit. For more information regarding the discovery process, please see the article linked here. Both producing and reviewing these documents can take a lot of time and there can be additional difficulties if one party is refusing to provide documents.
What happens when someone hides evidence in a divorce case? If a court finds that one of the parties intentionally hides evidence, they may face serious consequences such as fines, barring testimony or certain arguments, or even jail time.
Leading up to trial, it is common for depositions to be taken. Depositions are legal processes in which a witness gives sworn testimony outside of court. Depositions are usually taken for information gathering purposes, however, can also give an attorney a feel for whether an individual would be a beneficial witness, and ways to poke holes in their statements if needed later at trial.
During trial, witnesses will be called to give testimony relevant to the proceedings. There are two witnesses for trial: lay witnesses and expert witnesses. Both parties will be lay witnesses at their trial. Lay witnesses can also be friends, family, or colleagues, who can provide relevant testimony. Expert witnesses can be a range of professionals such as real estate appraisers, Guardian ad Litem, business validators, child custody evaluators, doctors, etc. There is a specific standard that has to be met in order for an individual to qualify as an expert.
Before trial, your attorney will have to prepare witnesses that are being called on your behalf, as an unprepared witness may harm your case. Your attorney will explain the courtroom process to the witness, emphasize telling the truth, practice testimony and cross-examination, and help the witness articulate their testimony clearly.
Once the discovery phase is over, your attorney will prepare exhibits for trial based on the information received. Your attorney will provide an exhibit list to identify and organize all the exhibits they will introduce as evidence during your trial. Attorneys may also be required to meet in advance to see if any exhibits can be stipulated to, which helps streamline trial.
Settlement is oftentimes beneficial for both parties as it can reduce costs and allow parties to remain in “control” of the outcome, rather than leaving the issues to the judge to decide. However, trial can’t always be avoided and is a reality for a lot of individuals.
The attorneys at The Law Office of Erin M. Wilson LLC have experience both in the resolution of cases as well as conducting trials and are happy to assist you in your domestic relations proceedings. Please contact The Law Offices of Erin M. Wilson LLC for a consultation at 312-767-4220.
NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.