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pre-trial checklist

7 Things Domestic Litigants May Do Wrong When It Comes To a Trial

A party to divorce or paternity action is undergoing what is recognized as one of life’s major stressors. This dynamic escalates several fold if the parties do not come to an agreement (or mediation fails) the divorce or paternity action goes to trial.

The game has changed a bit. Now, it is no longer a negotiation, it is a battle. And a third party, the judge, who has only monitored the case to date, will hear the evidence and decide the case. Stated differently, when (and if) a divorce or paternity proceedings reach the trial phase, it is no longer just the attorneys and parties involved.

This changes the balance and orientation of case. It is no longer a party speaking to his or her attorney, who then speaks to the other side’s attorney, who speaks to the client, and so on and so forth trying to find common ground and forge agreement.

Game day is no longer the volley of negotiations back and forth. Now the legal transaction is basically a presentation of a case, putting the party in the best possible light and leaving the decision to the judge. That is exactly how the system anticipates a dispute that cannot be otherwise resolved through the legal system to work out.

If this is your case, and it is going to trial, there are seven factors you control that may negatively impact your case–seven things Ciyou & Dixon, P.C. advocates observe many litigants do not handle or address in the most prudent way. For the most part, this is attributable to the various emotions that underpin and drive many, if not most, divorce or custody cases.

The “unknown” associated with a trial–the loss of control— is a scary and emotional time, but avoiding these seven pitfalls can help you help your case and go a long way toward meeting your legal objectives. The following strengths or weaknesses may turn your case:

First, be prepared. This seems like it is too basic to remember, but under stress at a trial, you may fail to remember basics, such as dates or marriage and birth. Thus, being prepared in terms of what to expect of what is about to happen may keep you from being overwhelmed and act as such.

A good way to navigate this problem is meet with your attorney ahead of time to prepare for the process and what will be expected as the trial moves forward. If you have questions or concerns, do not assume it will be resolved. Call your attorney or advocate and make sure you are all on the same page.

Second, do not react emotionally. Or at least control your emotions so your story gets into the evidence. On the stand, the opposing side will likely be trying to present your worst side–you in a negative light. It is human nature, but do not roll your eyes or gasp or be distracting.

Even while the other side’s witnesses are on the stand, the judge is aware of you and your actions and reactions. Keep yourself in control. You will get your say in time. You also will avoid appearing unreasonable or defiant to the judge who may not have an image of you on how you act and behave on any other day.

Third, dress professionally. Again, you are presenting not only your case, but yourself as a parent who should have as much time as possible with your children or should have X in terms of asset and liability division. Arriving anywhere disheveled in wrinkled jeans and a logo t-shirt is not a good first impression.

Dress professionally, and if you are unsure of what to wear, speak with your attorney. They are often in court daily and have a better idea of how you can best present yourself. On the other hand, do not dress in such a way as is so out of character for you it makes your demeanor unnatural. A court has to assess your credibility and squirming in tie in a shirt with too small a neck size may come off as disrespectful, flighty or a number of ways inconsistent with the real you.

Fourth, do not be a distraction to your attorney. If you need to speak with your attorney at some point during the trial, ask ahead of time how that communication should go. Should you lean in and whisper (there are usually microphones used to record the trial, and they pick up most noise from the table) or write a note.

Interrupt your attorney’s focus only if necessary for important/crucial information, but do not lean over after every statement of the opponent to say “that’s not true!!”. Your attorney has to listen to opposing side’s testimony in order to cross-examine, and if they miss part of the testimony, they could be missing an opportunity to help your case.

In fact, attorneys are generally doing several things at the same time during any given moment of trial: watching all of the non-verbal communication occurring in the court room, making notes, and listening to the questioning and anticipating the next question or objection.

At the same time, your attorney has to mentally organize your case and the law and the evidence that has been put on and that needs to be to help you get to your legal objective.

Fifth, do not forget to update your information. During the process leading up to trial, you have likely given your attorney numerous items such as paystubs and tax returns. However much of it might be outdated by the time of trial. For instance, if you lose your job just before trial this has a potential direct impact on child support.

Trials are a very fatiguing event for attorneys and you should not assume this might come from some indirect comment or factual inference. So bring current paystubs (and give them to your attorney before the middle of the trial). If your income has changed, tell your attorney as soon as possible. If you have a new house with two (2) fewer bedrooms, tell your attorney.

This could change how the argument of your case is made.

Sixth, do not skip breakfast, and get a good night’s sleep before trial. Teachers and parents have been saying for decades that a good breakfast can make your day. Trial days are long and often difficult. Having a good meal in your stomach will allow you not to lose focus on being hungry. You will be able to think more clearly, and be prepared until lunch for your morning’s tasks.

Sometimes trials run through the lunch hour.

Similarly, complex thought processing is impaired by stress. The best hedge against this, aside from being prepared is to get a good night’s sleep the night before the hearing.

Seventh, do not lose your cool on the stand or “give up” and lose your will during the course of a trial. If you are called as a witness, even by your own attorney, it can be stressful. While being questioned, it is easy to get emotional and under this stress, lose control of your temper.

Especially while being cross-examined by the opposing side, parties often start to raise their voices or become aggressive or defensive. This time on the stand is being carefully observed by the judge. If you are testifying that you are a calm parent who never lashes out at your children but then lose your cool and become evasive in answers in front of the judge after a few minutes on the stand, you have lost credibility. An inference may be this is how you act under the strains of parenting. Not a good thing.

Most judges can see past a one-off, but the judge is there to follow the law and try to made a custody decision in your child’s best interests and or divide the marital estate in a divorce in a just and reasonable way.

Understand that this time on the stand may not be comfortable, but it is your job to control your emotions and remain calm. You attorney, the law and the evidence will do the rest. Remember also body language can be almost as or just as important as what you are saying.

Finally, trials are dynamic processes. If you thing you are getting your case on one moment and losing the next, that probably is a sign of good advocacy and the best presentation of the evidence for the judge. Do not assume you have lost. Everything until you have a final order may make a difference.

If your divorce or paternity does end up in trial, know the process and prepare yourself as best you can. With your advocate by your side and you at your best, you can take steps to increase the likelihood you have presented your best possible case.

Ciyou & Dixon, P.C. practices law throughout the state of Indiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes, law clerk.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

Indianapolis Divorce Attorneys, Dixon & Moseley, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.