Trying Out the Trial: Marital Litigation with Attorney Ruth Kim (Part 2)

Going to trial is never the best option. Having lived it with multiple clients, Ruth can testify that it is the worst scenario. Even on Zoom, the court isn’t ideal. Ruth will tell you that most people would not want a trial to be the ultimate resolution of their case. No one wants a judge making that final decision in their case. Because if you’re settling your case instead of having a trial, you both have a say in what’s going on. 

The problem with litigation is that people get caught up in the negativity. 

Spouses often use litigation as a way to take out their resentment. In these instances, people are not able to see straight and think clearly about it. They’re leaving out the logical reasoning needed to go through litigation. Put it this way: Do you really want a person in a black robe deciding your fate, your children’s fate, and the rest of your lives? Why would you want an unrelated third party that’s basically a stranger, who doesn’t know anything about you – other than what’s been presented by the lawyers – to determine what happens? You’re essentially giving up your autonomy. To the court, you’re just a number. 

Yes, the Judge is a neutral person who makes decisions for you, but they won’t make compromises for you.  

If you’re making your own decisions, and you have your own say with regard to the finalization of the terms, there are nuances that you can add in. There are compromises that you can add in that no judge will do for you. The judge is doing bare bones. The judge is going to lay out what the alimony is, what they believe the custody is going to be and so on. You’re talking about hundreds of thousands of dollars on dealing with custody, and the judge is going to say what your schedule is going to be based upon the review of the testimony, but they’re not going to take into account the nuances. There are a lot of things that go into play in avoiding the trial and having the judge make the decisions on these because you could be the master of your own destiny.

You only go to trial if you have exhausted all the tools the court provided for settlement. 

If you’re at the point of litigation, you have already exhausted yourself of all of the tools that the court provides you to try to resolve your case. Prior to litigation, you have case management conferences. These are conferences that the court does with litigants and with the attorneys to get a sense of where your case is, and to schedule dates and make sure you’re following along the path. Your initial case management conference is when you’re going to be sending out your propounding discovery. This is the formal exchange of information between parties and it includes asking all the questions that you would ever want to ask your soon-to-be ex-spouse.Then there’s going to be a date when you respond to the discovery. Your lawyers will schedule depositions, needed evaluations, and decide whether or not custody is in dispute. 

In the first initial case management conference, you lay out what the open issues are before the judge, and the judge gives you a guideline as to how your case is going to proceed. Presumably, when you’re getting closer to trial, you’ve accomplished all those dates and deadlines, the discovery. If custody is an issue, then you do custody interrogatories, which are horrible. It’s a very invasive process; think, a strip search in your parenthood. They’re going to ask questions to determine who the “better” parent is. They will straight up ask: “Are you a better parent?’ ‘Why are you a better parent?’ ‘Why do you think that you’d be a better parent to your children as opposed to your spouse?’ ‘Who’s a better disciplinarian? Is it you?’ ‘Have you ever done corporal punishment?’ There are lifestyle questions as well, which come up when discussing alimony. The lifestyle interrogatories deal with, ‘Where did you shop?’ ‘Where did you eat?’ ‘Do you wear bespoke clothing?’ ‘What restaurants do you go to?’ If there was an extramarital affair, they’re going to want information with regards to that. It’s not just the questions, it is requests for documents. That could mean three to five years of bank statements, three to five years of retirement accounts and investment account statements. And if you’re ever doing the dissipation, whatever you spent on that paramour or extramarital love interest, you’ll have ot supply or will get to receive the information on that. The discovery stage can be extremely laborious. T.H. has huge Rubbermaid container bins for the amount of paperwork that was accumulated in her discovery process. 

When it comes to litigation, it’s a misconception to think your lawyer does all the work.

This is a lot of homework for you. It is work that you are going to have to spend time doing because your lawyer doesn’t have access to all your information. A lot of the information that is needed requires you to spend hours tracking it down through all of your records. In addition, any expert reports need to be updated and submitted. You’re going to have to pay for your custody evaluator to make sure that they update their reports. You’re going to have to have your house appraisal updated. If you have forensic accountants involved, all their schedules need to be updated, and they all need to be prepped and ready to go for trial. It all costs more money. Think about the process you had to go to for approval for your lease or mortgage. This is a hundred times more work than that. You could be spending weeks on end just gathering paperwork before you even give it to your lawyer.

Every piece of paper costs time for your lawyer to look at. 

It’s not just your time, because then you’re going to hand it off to your attorney, and then you’re going to pay them by the hour to look through all of it. If someone’s case is four years old, Ruth has to go through their whole file again. She has to go through four years of files to determine what is helpful to her in the trial. Now with everything being online, and knowing how litigious cases are, Ruth has subfolders within each client’s folder. She organizes it into categories, and subcategories, so she can better focus on the prime areas that are going to be major concerns for her. The piling on of documents is why most smart attorneys require a trial retainer before trial even starts. That trial retainer is not going to be cheap. It’s going to be thousands upon thousands of dollars, because there are a lot of issues that need to be taking place. If this is the upheaval of your life, it’s the upheaval in your attorney’s lives. Like you, they are focused on your case many hours for days, weeks, months and even years, and that comes at a cost.

The worst case scenario is having children involved. 

Unfortunately, if you have children involved you’re likely going to have custody and parenting-time related issues. If you do, you’re going to need to retain a custody evaluator. You can either do it jointly, meaning that you or your spouse are electing to use one joint evaluator to make a call with regards to who should have custody, and what the parenting time structure should be. The other option is doing it separately with either party retaining their own evaluator. It’s entirely up to you. Judges weigh these custody evaluators very heavily when it comes to custody trials, because otherwise, it becomes a “he said, she said” situation. Now, of course if you get a custody evaluation and you don’t like what they’re saying, you have the ability to get your own rebuttal report. However, this will delay your case even further because it creates a cycle of going back and forth between rebuttal and evaluator. It could be never ending. There is some point where the judge says enough, and moves forward. The rebuttals stop, but truly, it’s a major setback.

Depositions are a double edged-sword. 

Depositions are what take place after all the discovery is done. You have all the documents in front of you, and it’s a point in time where some cases can settle, because they’re getting questioned on the things that they produced and the information that was gathered. Maybe your lawyer is realizing you don’t have a strong case or that you’re not so great under pressure, and can’t go before a judge. This would cause you to settle the case right away. You either regroup and, and go forward, or you go to another mediation session and try to resolve it. Deposition is the first step in asking the questions that you may have had all along with regards to your case. For example, when you’re going through discovery, and you see a line item, and it’s not an account you’ve ever seen before, and you’re seeing it on a monthly basis. Now you’re wondering where your spouse is funneling this money. At a deposition, you get to ask those questions and you get in-depth answers. It may lead to either settlement, which is unlikely, but it’ll more than likely lead to more questions, more issues, and money. 

People get caught up in the possibility of unearthing information. They think this is going to be the chance they can ask details about their spouse’s affair. They can ask about X, Y and Z. But, keep in mind, anything that you’ve ever done is also going to be brought into question. It’s a two-way street. Anything that can be used against you is going to be used against you, just like whatever you have to use against your spouse. 

The deposition process isn’t just the parties. You can depose your experts. It could be someone that they’ve had an affair with. It could be friends of yours for specific reasons that you’ve been on vacations with. Even a business partner. Essentially, you can depose anyone with some relevance to your case. A lot of people would not want to be deposed if their friends were getting divorced. It is a difficult spot to be in.

“Do you want a person in a black robe deciding your fate, your children’s fate, and the rest of your lives?”

Ruth always poses this question to potential clients who are about to start trial or are thinking about it. If you have a relationship with your ex, reach out to them. You can avoid jumping on a train that gets derailed. Have a conversation with them. You have to realize that this process doesn’t just hurt them, it hurts you. At the end of the day, you both want to take the path that is least painful. You can get yourselves back to a place where you don’t need a trial, or where you could say, maybe we’ll narrow down the issues for trial. You could have a trial on ten issues, but if you could resolve five of them, you’ve cut down a good chunk of time. If you can get custody and parenting time squared away, it makes the lawyer’s job easier, because then it’s a business transaction instead of a family one. It really is extricating yourselves from the business of your marriage and just doing the finances thereafter. Custody and parenting time are the hardest parts of all of this.

There is no long story short with litigation.

It’s a process that consumes time, money, and emotions. It’s important that people who are in this situation have a clear understanding of the complexities and the nature of litigation so that they know what they’re getting into. Litigation can become ugly fast and it’s better to know that in advance, than having to experience it without being prepared. It’s true that some cases really cannot and won’t be resolved without litigation and going to court. But as you go through your process, it’s important to know what your other options really are.