Steve Thomas
Attorney at Law

Guide for Parties Involved in Litigation

If there is any possibility that you might be involved in litigation – that is, contested court proceedings in which evidence, including testimony of  witnesses,  is presented - it is important that you carefully read this document. This is just as important for dissolution of marriage parties as it is for criminal defendants.

Discovery and Disclosures

It is important that you tell your attorney all he needs to know about the facts and circumstances surrounding your case. Your attorney will ask you questions and have you fill out information forms, but you know the facts better than he does and he cannot always know what questions to ask to get the information from you.  You must try to avoid a situation where your attorney learns facts for the first time in the midst of a contested court proceeding.

Besides answering all your attorney’s inquiries truthfully and thoroughly, try to provide to him all information that might possibly be relevant to your case, either during personal discussions with your attorney or in writing.

Be careful not to overdo this and flood your attorney with information that is not important to the case. Try to stick to the facts – avoid outpourings of emotions and feelings.

If you write out facts for your attorney (including by email), be as concise and to the point as possible. It is very difficult for attorneys to read through long letters or emails trying to find information important for your case  if the writing also includes questions, complaints about the behavior of the other party, other cases, small talk, and so forth.

Also, if you write out facts for your attorney, use clear language and proper grammar. Get in the habit of writing formally, using complete sentences, even in emails, because otherwise your meaning can be confusing or misleading to, or even completely lost on,  your attorney.

Financial statements must be accurate and complete. Most family cases involving support, property or debt require financial affidavits to be on file well prior to the hearing. Take your time and make sure the financial information is as up to date as possible. If you have questions about how to fill out the financial form, ask your attorney – do not make assumptions that might be wrong about how to fill out the form.

Do not wait until the last minute to give documents to your attorney. You have a duty to update any discovery requests – so provide your attorney up to date information as soon as you get it.

Help your attorney identify possible witnesses and whether these witnesses will appear in court voluntarily. Usually, witness disclosures are required by a certain deadline. Bear in mind that if you want to compel an uncooperative witness to appear in court, your attorney may want to take that witness’s deposition in order to be sure of what that witness will say in court, though this could be expensive. Calling a witness in court without knowing what that witness will say is a hazardous undertaking. The advantage of having a witness who is cooperative is that your attorney may interview him or her without the other attorney present, whereas in a deposition the other attorney has a right to be present. Even if you have a cooperative witness the other attorney may want to take that witness’s deposition, adding to the cost of litigation.

Your attorney has a duty to keep the information you provide to him confidential, so do not withhold any relevant facts from him. If any information you provide seems to hurt your case, you still must tell him about it. Your attorney will determine whether the harmful information must be disclosed to the court or to the other party or whether it can be kept secret. Even if your attorney does have to disclose the information, the effect may be beneficial in the long run, including by possibly bringing the parties closer to a settlement and saving litigation costs.

Being a Witness

Most parties have never testified as a witness in a courtroom before, and yet most judges seem to expect them to perform as if they were expert witnesses or lawyers themselves.  So it is important to be prepared before you are sworn in to testify.

When there is conflicting witness testimony, judges must decide which party is telling the truth (if either one of them is). So it is important that you be a credible witness. Though you should always be truthful, sometimes that is not enough. Also important are the following:

Be prepared. Go over all the important facts in your mind ahead of time so that you can explain them without missing important details or contradicting yourself. Call your attorney well ahead of time if you think you need more time with him to prepare for the hearing. If possible, get to the courthouse early and ask you attorney to meet you before the hearing begins, if he does not arrange to do this himself.

Be respectful.  Do not go on the witness stand with a sense of anger or with attitudes of defiance or entitlement. Do not take offense or get angry because of the questions opposing attorneys  or even judges ask you.  If you think a question by a judge or the opposing attorney is misleading, it is up to your own attorney to set things straight when it is his turn to question you.

Know the rules. An important one is that you must only answer the questions the attorneys and judge ask, without volunteering your own information. This is no time to answer questions like a politician, evading questions and changing subjects. Follow the judge’s directions to the letter. If there is an objection, stop talking until the judge allows the questioning to continue.

General Courtroom Decorum

You should be dressed properly in the courtroom. Courts have dress codes, and if you are not in compliance your case could be delayed, causing you the added expense of returning later. You do not need to dress formally – coats and ties are required for attorneys but not parties – but you should wear good casual, clean clothes that do not draw attention to yourself.

Conduct yourself properly when you are not testifying. Obviously, you must  not interrupt the proceedings when other witnesses are testifying or the attorneys are speaking, but neither should you violate the spirit of this rule by attempting to use nonverbal means of communication such as glaring at the judge, witness, opposing attorney or other party; shifting noisily or slouching in your seat; and so forth.  You cannot help but show some emotion at times, but do your best to control it. Do not be theatrical, either on or off the witness stand.

Communicating with Your Attorney During Proceedings

Parties often feel it is important to communicate with their attorneys in the courtroom while the trial is in progress. This poses a problem for attorneys, who must listen to the proceedings and their clients at the same time, something that is difficult if not impossible to do.

Especially during examination of witnesses, your attorney will be taking notes in order to know what to ask the witness when it is his turn to ask questions. This requires some degree of concentration by your attorney, and if you disrupt him in this process, a detail important to your case may be lost.

So you should avoid talking to your attorney if possible during the proceedings. If you have something very important to communicate, write it on a note and show it to your attorney between questions  – but do so only when necessary.

Settlement Discussions

One problem with settlement discussions is that too often the parties wait until the last minute to get serious about  settling. The problems with settling at the last minute are twofold. On one hand the parties have spent a good deal of time preparing for a hearing, and if it settles, much of that work is rendered superfluous. On the other hand, if settlement is anticipated, the parties may not do as much preparation for trial as they otherwise would. I have known  very few judges who are sympathetic to this dilemma, which is a real one especially for clients who do not have a lot of money to spend on attorneys.

I suspect that some lawyers intentionally put off serious negotiations until the last minute in an attempt to gain an advantage over an opposition who either has not prepared adequately or who feels they would be at a disadvantage if the trial proceeded as scheduled.

I recommend to my clients that they do all they can to honestly disclose the facts they are requested to disclose in discovery, and to try to come to settlement well before a contested hearing begins.  If the other side does not also take this approach, I may have no choice but to fully prepare for the trial.  My clients can help themselves by communicating directly to the adverse party (especially in divorce cases) in order to reach terms of settlement without minimal involvement of their attorneys. My clients should be prepared to pay me in full, however, for the often considerable amount of work required for me to prepare for a contested hearing, taking into account that such a hearing could take hours and even days.

After the Trial is Over

If you prevail, be careful about celebrating too soon, because there may be post-trial procedures and even appeals that could overturn the judgment.  Also, getting a judgment is one thing – collecting damages may be quite another. A judgment is usually not an order for the other side to pay. And even if there is an order to pay, and the other side does not pay, you may have to take further action to enforce the order.

Losing parties often have feelings of resentment, not only against the other party and the judge, but also against their own attorney. They tend to become extremely critical of every little thing they feel the attorney might have done wrong, though rarely does this end up in actual malpractice proceedings. These feelings of resentment can cloud sound judgment as to possible post-trial procedures that may be available.

If the judge made a material mistake (one that affected the outcome), your attorney can file a motion to reconsider.  This is not going to succeed if it simply asks the judge to change his mind – you must identify a real and clear mistake the judge made that affected the judgment. If the judge does not change his ruling, you can still appeal, but again you must be able to make the case that the judge made a clear error that affected the outcome. An appeal puts the trial court on trial, and there will be no change in the judgment if the trial court made no mistake.

Most often the parties must learn to accept the judgment. You should permit your attorney to give his impression of why the judgment was correct, and listen to his advice as to the best course of action, if any, from that point forward.