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Evidence at Trials: Things Self Represented Litigants Should Know

The decision whether or not to have an attorney represent you in your divorce or child custody case is one of the most consequential ones that you will have to encounter during the entirety of your case. While it is common to hire an attorney for any family law case, it is not required. There is nothing in the Texas family code that requires you to hire an attorney. What that said, doing so may be in your best interest especially depending upon the specific circumstances of your case. You can view hiring an attorney as a short-term investment into your and your family's long-term future.

There are many benefits to having an attorney available to represent you. Those benefits extend far beyond the day-to-day of a family law case and have to do just as much with negotiations as with courtroom procedure. I want to discuss the benefits of having an attorney in the courtroom with you throughout your family law case. However, before we do that, I want to share my thoughts on the benefits of having an attorney in the weeks and months leading up to a trial or temporary orders hearing. To be sure, having an attorney for help managing your case is valuable from the time you have to either file your divorce or respond to a divorce that was filed against you. The importance of having an attorney only increases when you have children involved either in a divorce or child custody case.

What benefits are there to having an attorney outside the courtroom?

Without a doubt, having an attorney available becomes extremely important when you were in the courtroom. You may have guessed this from watching television and movies where courtroom scenes are almost always the most drama-filled in an entire show. Something about being in a fancy courtroom with a judge, they left, courtroom personnel, and your opposing party are enough to make even a mundane case seem exciting by having you and your opposing party squaring off in a hearing or trial.

The reality of a divorce or child custody case is that you will spend relatively little time in court. Most of your case will be spent in a negotiation phase where you and your Co-parent will have an opportunity to work with one another on concluding a case through salmon negotiations rather than in court. From my experience, the vast majority of Texas family law cases settle outside of court rather than in a courtroom environment. Simple, although your interest may be in determining the value of an attorney in court, the reality is he may never step foot in a courtroom for your family law case.

Outside of court, an attorney will help you to be able to manage your case from a logistical and time commitment perspective. To be sure, one of the major benefits of having an attorney is having someone with experience be able to guide you in moving your case through the process. Like any other issue we deal with in our lives, a family law case has a process that will need to be followed. While learning about the process is not especially difficult, there are finer points and subtleties that you will not be aware of as a person who is not an attorney. Making a small mistake in the filing process or in the timeline management of a divorce case can set you back both in terms of money and time. Working with an experienced family law attorney means that you will probably not have to worry much about these aspects because the attorney will guide you through them due to their experience and know-how.

One of the questions that I receive most frequently regarding a divorce or child custody case is how long the case is expected to last. The answer to that question depends on many factors, including how well and how efficiently you managed the case. For instance, suppose a situation where you file your divorce and then do nothing to follow up on the case for weeks afterward. You would still have been paying the filing fees and court costs of filing your divorce, but you will have to move no closer to getting a divorce. Even if your spouse does not respond to the divorce petition, you could have filed a new or final divorce decree and taken the time to draft the document. Because you did not do so, you wasted an opportunity to get a default judgment in your divorce case and wrap the case up in an efficient manner.

By the same token, you and your spouse or Co-parent can actively negotiate through the issues of your case so that you can arrive at a settlement instead of delaying the case further and further. Bear in mind that you are not bound by the decisions of a family court judge as to how long your case will take. Many people believe that the family court judge determines how long a case will take. In actuality, this is not the case at all. Rather you and your Co-parent have direct control over how long your child custody takes.

However, in most cases, if your attorney does not push you towards settling your case and actively negotiating with your Co-parent or spouse in the divorce or child custody process, then you likely will not do so. People often waste opportunities to negotiate and settle a divorce case by not engaging the opposing attorney in conversation. Bear in mind that you have to work through children and property division issues in lots of divorce cases. If that's the case, you need to make sure that you take advantage of every opportunity available to you when it comes to settling your case.

There is something about the downtime associated with the family law case where it lulls you into a sense of security where you think that the only times you have to do much in the case is during a hearing or trial. If that's the attitude that you have about your case, then it is likely that you will end up taking longer to complete the case than you otherwise would have to do. You can make decisions along the way in a case that otherwise could push you towards completing the case sooner rather than later.

For example, one of those decisions would be to assist your Co-parent or spouse with providing them with information and documentation to allow you to make decisions regarding property division. Simple things like this will assist you in speeding up the progress of your case. If you are not proactive about providing simple information like this, your spouse and Co-parent would likely need to request this information via the discovery process. While there is nothing wrong with this, doing so will indeed take more time. So, if you want to save time, you can see to it that your opposing party is provided with this information proactively rather than forcing both of you to submit a request for discovery to one another. Discovery periods last for approximately 30 days, plus the time it takes to review your submissions. Unless your discovery requests are turned in simultaneously, you were looking at a delay of at least two months by waiting for this information.

Next, I would point you towards the benefit of having an attorney when preparing for mediation. Mediation is a process whereby you and your opposing party will select a neutral, independent attorney to help you broker a settlement agreement. Mediation is common to engage in for both divorce and child custody cases. Many times negotiations through mediation will occur both before temporary orders hearings and before trials. I have seen some family court judges require that you attempt to mediate your case multiple times before allowing you to attend a trial or mediation in their courtroom. This is because mediation is so successful at completing oh case by allowing you and your opposing party to take control for direct negotiation as facilitated by the mediator.

It would help if you had an attorney in mediation because this process is derived from your ability to problem solve in a creative fashion. Negotiation and family lowercase means that you will be presented with proposals and counter-proposals. You need to take those first encounter offers and be able to consider them and then come back with counteroffers. An attorney can help you determine a reasonable settlement offer to accept or if counter proposals need to be made.

Presenting evidence in a trial without an attorney

The rules of evidence are RM important factors in any family law trial. The rules of evidence will help a judge determine what documentation, testimony, and other types of physical evidence are admissible for your trial period; you may have a juicy or damning piece of evidence against your Co-parent or spouse, but if the evidence is inadmissible, then a jury or judge will not be able to consider it when making decisions in your case. The rules of evidence are also complex enough where it is unlikely that you will learn enough about them to represent yourself competently.

This is especially true if your opposing party has an attorney to represent them. Going against an experienced family law attorney in a trial is a recipe for disaster as it pertains to your case. That attorney will be able to utilize the rules of evidence against you to keep out potential pieces of evidence that could be harmful to their client's case and helpful to yours. This is to say nothing of offering objections during the hearing, controlling the given testimony, and generally asking better questions on direct and cross-examination.

Many clients aren't even aware of what the rules of evidence are before or even during a trial period again; while your attorney can provide you with a basic understanding of what the rules of evidence are and how they pertain to your case, this is not typically something that the attorney spends a lot of time going over with. Rather, the attorney is responsible for being able to handle matters like this. If you go through a divorce or child custody case and expect every document or person's testimony to make it into the courtroom as evidence, you will be surprised at what you learn.

Preparation for a trial

One of the many benefits of having an attorney representing you in court is that you are not responsible for all trial material preparation and a general strategy. This would be like having an outside person step into your workplace and have to give a big presentation on a subject matter they know little about. That is the position you will be in in a trial without the experienced and helpful family law attorney guiding you. A trial is like a big presentation for work- if that presentation lasted for a couple of days and the lives and well-being of you and your family hung in the balance.

Preparing for a trial will probably be the costliest step of your case, both in terms of money and time. Bear in mind that your opposing party and attorney will prepare as diligently as you are for your case. As such, you need an attorney available to help think of questions to ask indirect and cross-examining situations, prepare a trial notebook with documents, pleadings, and motions previously filed so that you will be able to cross-reference them while you are in court, as well as to maintain negotiations with your Co-parent or spouse throughout the process.

As you can see, you will be responsible for balancing several things during a case where you otherwise might have issues. If you plan to represent yourself in a family law trial, you need to become familiar with the basics of offering evidence into the record. This is not as cut and dry as you might think and honestly does take a fair bit of practice even for attorneys to master. Lawyers take a class in law school called Evidence and deal in the meticulous process of laying a foundation, offering the document into evidence, and then responding to objections from opposing attorneys. This is an extremely painstaking process made more difficult by the stress and distractions of a courtroom environment.

When you are attempting to offer a document or other physical type of evidence into the record, you need to speak clearly and have thought ahead about what you planned to ask an offer to a judge. Simply making something available to the judge and then having them try to figure out what you want to do with it is not a good plan. Rather, it would be best if you had thought out how to bring the judge's attention to the document, integrate it into your questions, and then work towards admitting the document.

Closing thoughts on preparing for a trial in a family law case without counsel

Without a doubt, having an attorney by your side is incredibly useful during a trial. Not only do you have to concern yourself with matters related to the actual trial itself, but you also have issues related to your expectations and worries about the case to battle through. Rather than worry about the result of a case or the trial is still going, you are better off being able to focus on your family and leave the nitty-gritty preparation associated with the case to your attorney. After all, you are hiring the attorney for the end, but the attorney is trained to do for you and your family. Do not look at a divorce or child custody case as an opportunity for you to save money. Rather, it is best for you 2 work through the emotional and other issues related to your case while assisting your attorney and preparing for trial.

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how the filing may impact your family has a divorce or child custody case.

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