OVERVIEW

It’s been said, “There are many different ways to skin a cat, but the goal is a naked cat.” Likewise, there are many ways to prepare for and try a family law case, but the following steps will help you get to that naked cat – and may stop your client from wanting to skin the opposing party or their lawyer.

A family law case is unique in that the client is typically going through something they never imagined they would face. On their wedding day, they stood before family and friends and recited their vows, believing they were entering a union that would last a lifetime. Instead, for whatever reason, it didn’t, and they have come to you for resolution. Whether this is the person leaving or the person being left, it is painful for them. They are going through a paradigm shift. Their future is going to be far different than what they envisioned. It’s quite uncertain, and no one likes uncertainty. However, as in a quote often attributed to American physicist and inventor Robert Goddard reminds us, “Just remember – when you think all is lost, the future remains.”

Many of the clients will feel lost and afraid. For most, it is their first time going through a divorce. The fear and uncertainty of not knowing how the future looks causes people to act in different ways – most of them are not positive. Even worse for the clients is that they are dealing with two of the most important areas of their lives: their kids and their money. This is why you should brace yourself for heightened emotions when dealing with family law clients.

BEGIN AT THE END

The poet T.S. Eliot wrote, “What we call the end is often the beginning.”[1] Actually, the best place to start with a client is at the very end. Begin every initial meeting with a client by asking them to define their ultimate goals. A new client is always quite eager to share their story. Tell them you want to hear everything about the facts of their case, but first, you want to know what end result they would like to achieve. Then, add that by understanding their goals, you can determine which of the facts in the case are helpful, useable and important. By stating this upfront to clients, they will be less inclined to engage in an “information dump.” They will understand that you don’t need to know everything about their situation and that learning what their goals are will help you focus the case.

We are counselors to some degree, but we are trained in the law, so the resolution of their legal case is where we must focus. Often, the best thing a family law attorney can do for a client is to refer them to personal counseling, such as a licensed counselor or psychologist. This will not only steer the client to a professional who is better able to help them psychologically deal with their situation but might also save them money.

When you ask them to determine their goals, be sure they understand each potential area of their case. For example, if they have minor children, explain the difference between sole and joint custody[2] and what parenting time means, which will affect their goals. Then, talk with them a bit about child support. Explain how that works,[3] find out what they owe and own, and then help them set reasonable child support goals. Find out if a name change is requested.[4] Talk about tax exemptions. Find out if alimony[5] is applicable and, if so, what their monetary goals are. Most importantly, listen and take notes. Lastly, read all of their goals back to them. Be sure you are on the same page and that you’re communicating clearly with the client. Once they hear you read their goals back to them, they might say, “No, that's not what I wanted in that area.” By establishing exactly what their realistic, achievable goals are, you will have the basis for knowing where you will eventually end the case – hopefully, with a win.

When you ask the client to give you the facts of their case, really listen. If possible, have a paralegal take detailed notes. It’s important that you take notes, too, but you should spend most of your time absorbing what the client is saying and processing that information. If you try to take down everything that is said, it will impede your ability to really listen. When they are finished sharing, go back through everything so they can see that you’ve been listening. It will increase their confidence in you, knowing that you understand the facts and where they would like to end up in terms of custody, visitation, child support, asset and debt division and alimony.

SET EXPECTATIONS

As you review each goal with the client, your next step is to set client expectations. For example, one parent will often ask that the other parent never see the kids again. Absent certain extenuating circumstances, that is not a reasonable expectation under Oklahoma law, so you need to correct those expectations with the client. Different attorneys do this in different ways. Some will confront the client directly. Personally, I like to explain to the client that I don't make the laws in the state of Oklahoma and sometimes don't even agree with them, but those are the parameters in which we’re working. Any solutions I can achieve for them will have to be filtered through the statutes and case law. And sometimes, if they keep pushing back, I say: “Look, I agree with you, and I wish the law were that way. So what I need you to do is run for office. Get elected and change the laws. But until then, here is the framework under which we're going to have to work.” Usually, this backs them down and helps them understand the realities.

As you are helping the client set reasonable expectations while reiterating each goal, you should also speak with them about the relevant legal standards and the authorities. This is a critical step. You have shown the client that you have listened to their goals and are helping them set reasonable goals. This reinforces that you care about them and what they have to say. You are also building your credibility by demonstrating that you know and understand the law and want the client to be a part of the process of goal setting and understanding what you’ll be doing together.

COMMIT IT TO WRITING

Your next step will be to start working on the request for relief. Each of the client’s specific requests should be listed for each area. Ideally, this list should be short and simple – one or two pages. For example, list custody and state precisely what your client is requesting. The request for relief will become your guide throughout the case. In addition, you can draw on it if your client goes off track, wasting money just to prove a point. If that happens, you can help the client refocus by asking, “How is this going to help us achieve one of these goals?” You can also remind them that they are getting ready to spend a lot of time and money on something that is not going to further one of their goals.

When you start requesting discovery, your request for relief also helps you guide your case as it becomes the basis for gathering information and tailoring your questions. You may want to offer your client’s request for relief to the judge at the beginning of the trial as an aid to the court by stating that this is what your client will be requesting. Your trial strategy is going to be organized around this request for relief as you seek to show the judge what your client is requesting, why the request should be ordered, what the legal standards are and what facts support the request. Prepare the request for relief as soon as possible because it keeps everyone on the same page. I have tried preparing cases when the request for relief was completed right before trial, but that is a very inefficient and ineffective way to prepare.

TRIAL PLANNING

The next thing to do early on is start looking for the theme[6] of the case. The theme is just a short phrase – a sentence or two that helps you sum up your client's position in the case and helps separate your case from the hundreds of others the judge is hearing. Some themes our firm has used in the past, for example, have been “runaway mom,” “greed beyond the grave,” “big guy vs. little guy” and “set up for failure.” Explain to the client what a theme is, what it does and how it ties the facts together to make their case memorable.

Next, after your client has shared the facts of the case, the two of you need to work together to prepare an outline and timeline of relevant events. For example, what events led up to the divorce? When we say relevant, we are referring to the events the judge needs to know that support the items in your request for relief. The request for relief and outline of events will serve as the basis of your case. Then, create a little story for each of these events. We call these chapters.[7]

As you are preparing chapters, you will hear things from your client like, “Oh, I've got a picture of that,” or, “I have text messages [or emails] supporting that!” This is the kind of evidence that will become the exhibits for your chapters. Throughout the case, work on crafting these chapters and obtaining what is needed for the supporting exhibits. Create a chapter index and an exhibit index, and Bates stamp the exhibits. Do this throughout the case so that if the client mentions a worthwhile new event or story, you can easily create a new chapter and start pulling together the relevant exhibits. Don’t rule anything out, as it is best to gather as much information and create as many chapters and exhibits as possible. Keep those chapters and exhibits together, index them, and Bates stamp the exhibits so they’re easy to find. When a client comes in with a big stack of text messages, photos, etc., take the time to go through them and Bates stamp them. There’s nothing worse than losing something critical to a case. Also, by letting the client see the chapters, exhibits and indexes, you are showing them that they’re part of the team. Ultimately, the client knows the facts of the case better than you do. They have lived it, so they can update chapters and assist with their case as an integral part of the team.

MEDIATION CONSIDERATIONS

In addition to preparing for trial, you need to take several steps to prepare for mediation. By the time mediation rolls around, you will know exactly what your client wants and why. Being armed with this information and what you learn from opposing counsel will allow you to properly advise your client about the range of settlement options. You will be able to tell your client whether something is or is not a good deal and what they likely would be facing if they go to trial. You will also be able to give them at least an idea of the best, likely and worst-case scenarios.

Throughout this process, your job in getting a case ready for trial is, first, to work with the client to determine all of their goals, starting with the end goals, and then take all the facts and boil them down to the information, evidence and exhibits that are needed to present to the court. This is ideally to arm the judge with the information needed to rule in your client's favor and achieve all of your client’s predetermined goals.

Movie director and producer Ridley Scott said, “I think ... filmmaking is a team, but eventually there’s got to be a captain.”[8] As the lawyer, your role is like that of a producer or a captain of a team. The recent movie Top Gun: Maverick was pared down from more than 800 hours of footage to its running length of two hours, 10 minutes.[9] Despite the overabundance of solid footage that might have been included, it was condensed to only the very best takes. That is like your role as a trial lawyer – sifting through good material to find only the best for trial.

CONSIDER THE AUDIENCE

As we think about the judges in our cases, we know they are very hardworking and have a lot of pressure on them to be efficient and move their dockets along. They want to help people and take a lot of cases when the parties are unable to settle. Because trial time is a precious resource to all judges, the more we can boil down the relevant evidence and present it to the court, the more efficient, effective and successful we are in the courtroom.

Besides facing enormous time pressures, judges’ attention spans and focus are limited, just as they are for all of us. Judges are human, after all. TED Talks present some of the greatest ideas and information being shared in the world today, even though the maximum time limit for each one is 18 minutes.[10] TED Talks presenters have no choice but to boil their presentations down. Our attention spans only last so long. In family law cases, clients often don’t understand this. They want to tell the judge every little detail. As their lawyer, our job is to highlight the most important information so that we can hold the judge’s attention and be the most effective.

GET THE CLIENT INVOLVED

Here’s an example of how to do that. Let’s say a client comes in with an overabundance of information, such as countless emails saved on a thumb drive. This is common. Usually, the best thing you can do is identify the main topics covered in these emails and then, for each topic, identify the three best examples to use as exhibits in the various chapters you’ll be presenting to the court. The client can then testify that there are hundreds of other examples just like those. The timeframe from the start of a case until the case goes to trial is typically several months or even more than a year. During that time, things will happen. Exhale. The parties may call or text you regarding new issues or developments that have arisen. You must have an organized way to capture that information; otherwise, right before pre-trial, you will have to go through a month’s or even a year’s worth of information and try to pull out the relevant details. That is not only stressful, but it is also an ineffective way to prepare your client's case for trial.

Instead, as information comes in, add chapters as needed. Do it right away. They don’t have to be perfect, but when an event happens, create a new chapter on it. Bates stamp and index all new information and evidence so that you’ll have an updated list of everything the client has sent you. This will help you in client meetings when the client says, “Well, I already sent you that.” You can pull out the exhibit index and ask the client to point out what they’re talking about because you’ve indexed everything they sent.

Getting the client involved in their case is essential to giving them a sense of empowerment and control during their time of fear and uncertainty. Do this by sharing the chapters, indexes and corresponding exhibits with them throughout the process, including any new chapters or exhibits. Put it all in a cloud storage link, and send it to them for easy review. Bates stamping the exhibits is key because it lets you easily go to a specific document or page of a document in the cloud. Also, ask the client if they have any additional ideas when they review this material because no one else knows the facts of the case better than they do.

Keep chapters to one or two pages. They should contain facts the judge needs to know regarding certain incidents. For example, if your client experienced an incident during a visitation exchange, the chapter would contain that information. When did it happen? Who was there? What happened? Who said what? Who did what? The chapter should be sourced to any supporting documentation, such as photos or videos of the exchange or relevant text messages sent or received before or after the exchange. As you prepare for trial, you can use the chapter index while working with the client and your paralegal (if you have one).

You can decide on the order to present the chapters and evidence right before trial, a process called sequencing,[11] but do not wait till the last minute to get the chapters ready. Procrastinating will make it very difficult to deliver a strong case at trial. Procrastination also puts a lot of stress on you, your staff and your client.

Most judges statewide require mediation before pretrial. Fortunately, you’ll be well prepared for mediation because you’ll know what your client wants and what evidence you have as support – assuming you’ve established your client’s end goals in the request for relief and prepared your chapters, exhibits and indexes. All you need to do is send the request for relief, which can serve as the mediation statement, to opposing counsel and the mediator prior to mediation so that your client’s position on each issue is clear to everyone. This saves the client a lot of money and streamlines a mediation because the mediator doesn’t have to spend a lot of time in the room trying to figure out what the client wants.

PRETRIAL

The next step is pretrial. Pretrial is handled differently in family law cases than in other civil cases. The courts often handle it quickly and informally. Still, you’ll need to get a draft of the pretrial order started before pretrial. Identify what issues are agreed upon. Do the parties agree on jurisdiction and venue? If so, cite those details. List any other factual issues or matters the parties agree on as well. And then identify the issues that are not agreed upon. The judge will need to hear those issues and make a ruling on them. However, identifying them early on will help you organize issues for trial and pare things down so that the trial can be more efficiently run and more effective for both parties. Also, it’s always smart to arrange for a phone call or in-person meeting with opposing counsel before pretrial to see which matters might be resolved in advance.

Exhibits, of course, need to be listed on the pretrial order and exchanged with opposing counsel in advance of pretrial with enough time for the parties to review them and state any objections to the pretrial order. Different judges handle objections in different ways. Some allow objections to be reserved for trial. Nonetheless, in such cases, be sure to note the objections. Prepare for any objections that opposing counsel is going to make at trial. To summarize, exchange everything before pretrial, list all objections on the pretrial order, and then talk through those objections at the pretrial conference if the judge allows it. You are now prepared for both pretrial and trial – and the client has had significant input throughout your preparations.

Schedule a phone or in-person meeting with opposing counsel before pretrial or certainly before trial to discuss which exhibits can be agreed upon and stipulated. For example, if you have a bunch of bank statements or tax returns, why waste time at trial laying the foundation for those kinds of things? Go through and see what can be stipulated. Then, when you first go on the record at trial, you or opposing counsel can announce to the judge the mutual understanding of the stipulated exhibits. Judges like that because it shows the attorneys are prepared, it saves trial time, and for the client, it even saves money. Also, by talking with opposing counsel beforehand about their objections and the reasons for them, you can see if something can be worked out. Typically, evidence in a family law trial is going to be admitted because it is not a jury trial. In bench trials, most judges allow parties to make their case with evidence being allowed in the record, viewing this process as separating the “wheat from the chaff.” Most of the time, relevant evidence is going to come in. Keep that in mind as you are deciding where to fight your battles.

At trial, the judge’s time is a limited resource. So is the client’s money. We have a duty to our clients to be efficient and effective, which can help preserve the client’s resources as well as our own.

The next step in efficiently preparing for trial is to go back and improve on the chapters. Again, work with your client to pare down which exhibits are used while fine-tuning factual details in the chapters. Throughout the trial, you need to be presenting evidence that supports your requests or refutes the requests of the opposing party. Otherwise, you are wasting time. Sometimes, you will decide not to use a chapter you’ve created. That’s perfectly fine; it’s better to have created chapters that are scrapped than to scramble to add a chapter at the last minute.

CONCLUSION

Every successful lawyer wants the same end result or naked cat – a win for their client. Although different attorneys may “skin the cat” differently to get there, having a clear understanding of a client’s end goals, being organized throughout the process, being well-prepared in advance of trial and clearly and succinctly presenting your case to the court is the most efficient and least stressful way to achieve that win.

As stated in the quote often attributed to Chinese philosopher Loa Tzu, “New beginnings are often disguised as painful endings.” In the process of properly preparing your family law case for trial, you are successfully leading your client to their new beginning.

---

ABOUT THE AUTHORS

Allyson Dow practices family law and serves as a mediator. Ms. Dow served on the OBA Board of Governors from 2022 through 2024.

 

 

 

 

 

 

M. Shane Henry practices in the areas of personal injury and family law. Mr. Henry has presented CLE courses on numerous topics related to Oklahoma family law.

 

 

 

 

 

Ms. Dow and Mr. Henry are partners and trial lawyers at Henry + Dow + Masters + Aycock. They are also siblings.

---

ENDNOTES

[1] Line from the poem “Little Gidding,” T.S. Eliot. https://bit.ly/3CSBmO7 (last visited June 12, 2024).

[2] 43 O.S. §§109 and 112.

[3] 43 O.S. §§118-120.

[4] 43 O.S. §121(A) (1-2).

[5] 43 O.S. §121(B).

[6] Thomas A. Mauet, Trial Techniques, Sixth Edition (2002).

[7] Roger J. Dodd and Larry Pozner, Cross-Examination: Science and Techniques (2018).

[8] Kenneth Turan, "Man of Vision," Directors Guild of America. https://bit.ly/4fbHbU6 (last visited Dec. 5, 2024).

[9] “How Top Gun: Maverick Left 800 Hours on the Cutting Room Floor,” ScreenRant. https://bit.ly/3BlMfY5 (last visited June 12, 2024).

[10] “TEDx Rules,” TED. https://bit.ly/3ZAPIeA (last visited June 12, 2024).

[11] Roger J. Dodd and Larry Pozner, Cross-Examination: Science and Techniques (2018).