Getting Divorced: Final Trial

Trial happens when litigants cannot agree on the contested issues, which is less than 10% of the time, but it’s always best to prepare for it. Trial is a final hearing so that a Court can make those decisions. A settlement avoids Court, but may include terms that are unfair or unacceptable. Trial puts these decisions into the hands of a Judge or Jury.

Trials are the most difficult thing that lawyers do. Most lawyers in Texas spend their whole careers without being in trial. Many more face a few. It is really a select few who are experienced and excellent. The reason why trial lawyering is so difficult is that there is no hiding mistakes. The stakes are high and it is immediately clear to everyone in the courtroom which lawyer is better. It is much easier to be the kind of lawyer that negotiates settlements, even if that is not in the best interests of your client.

Less than 10% of cases end up needing Final Trial to resolve them, because 90% of cases will settle before then. Trials are usually held in the cases with the most at stake – child custody and/or large amounts of money. Normally, rational people with good attorneys should be able to settle a case on their own. But, that is not always the case, and very frequently one party is not rational. Or one (or both) attorneys are not very good, or won’t tell their clients what they don’t want to hear. Or sometimes, there are issues that just cannot be settled, such as when one parent wants to move far away with the kids and the other outright objects.

Trials can be in front of a Judge or Jury. Jury trials are more expensive, and that can be a factor in choosing one. If one side is more able or willing to spend money on lawyers, they can ask for a Jury Trial in an attempt to wear out their opponent financially. This tactic can be quite successful whether that is fair or not. There is an enormous amount of theorizing about which is better. The answer is: it depends.

Trials are also the most expensive Step in the 5 Steps of Divorce. Trials are expensive because they require so much preparation and attention to detail. The simplest 1-day trial over limited issues cost the least. Multi-week Jury Trials over complex issues cost hundreds of thousands of dollars. Because of this cost, and uncertainty, most cases will settle at Mediation.