Attorneys Dedicated to Family Law

EP #9: Contested Divorce Litigation: Selecting a Trial Lawyer When Negotiations Fail with Jason Weis, Esq.

• Curran Moher Weis • Episode 9

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When divorce talks stall and the stakes rise, the courtroom becomes the only path forward. Attorney Jason Weiss unpacks what makes a divorce truly “contested,” why some cases can’t settle, and how a prepared trial strategy can protect your kids, your finances, and your future.

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Jason Weis:

Settlement negotiations tend to fail either because of the parties or the facts or both. When you're talking about parties that can't resolve disputes, I mean, what I would say there is that as much as we would hope everybody would be reasonable and rational, that's just not always the case. And after all, you are here for divorce, so to speak. So we often see issues in divorce with uh a lot of emotion that can be an obstacle to settlement and even mental health issues.

Intro/Close:

Welcome to Attorneys Dedicated to Family Law, the podcast where our experienced attorneys at Curran Moher Weiss guide you through the complexities of family law. Whether you're facing a divorce, custody dispute, or financial matters, our dedicated team is here to provide strategic insight and practical advice. Each episode, one of our attorneys will dive into key legal topics and help you navigate your unique situation with confidence. Let's get started.

Charlie McDermott:

Well, welcome back to attorneys dedicated to family law. I am once again your host, Charlie McDermott and the producer of the show. And today we are diving into an interesting topic: contested divorce litigation, selecting a trial lawyer when negotiations fail with attorney Jason Weiss. Hey Jason, how are you doing? Thanks for being here.

Jason Weis:

I'm good. It's nice to be with you, Charlie.

Charlie McDermott:

Well, Jason, I know a lot about you from previous podcasts, but our viewers and listeners may not. Would you mind just starting out, telling our listeners a bit about your background?

Jason Weis:

Sure. Well, I am one of the named partners here at Kern Moher Weiss. As far as being a trial lawyer goes, it probably started back in high school. I was one of those kids that was very active on the debate team. And I did that through high school and then into college. I was a member of one of the oldest debate societies in the nation at my college. Then from there I clerked for the tax court, which allowed me to travel all over the country and watch all kinds of lawyers and all kinds of judges try different cases. I did that for about two years, which was great because not only did I get to see a lot of different people, but I got to talk to judges in the tax court about what they liked and what they didn't like. And then I would say, as a young lawyer, back now more than two decades ago, there wasn't a lot of mentorship, we'll say. So it was mostly trial by fire, which meant that I just did a lot of cases right away and I got a lot of reps early, so to speak. So I think that probably helped me develop into the sort of the lawyer that's comfortable doing trial work now, I would say.

Charlie McDermott:

Yeah. Well, awesome, awesome. All right. Were you ready to get started in today's topic? I am fire away. Let's do this. All right. Let's start with what does contested divorce litigation really mean? And when does a case move from negotiation to trial?

Jason Weis:

Well, when you think of divorce, you can think of it as a two by two matrix. You have contested and uncontested, and fault and no fault. So when you think about contested versus uncontested, that's really not more complicated than are there issues that you need a court to decide because you can't reach a settlement with your partner. So those would be issues like custody, visitation, support, proper division. If your case is uncontested, then you've reached an agreement that resolves those issues. There's nothing for a court to do and you don't have a trial. If your case is contested, you need to have a court resolve those issues for you. Fault versus no fault is really just whether or not you're going to proceed on no fault grounds, like you've been living separate and apart for six months or 12 months, or whether you're going to proceed on fault-based grounds like somebody has committed adultery or cruelty or desertion, something like that. And so when we talk about divorce, you can have a fault-based divorce that's also contested. You can have a no-fault-based divorce that's also contested, and so on. Obviously, the more issues that are contested and the more elements of fault you have, uh, the more contentious things are likely to be in a result, the more expensive things likely to become because you have to prepare to address all those things.

Charlie McDermott:

Wow, wow. Thanks for clearing that up. So then how about when or what are some of the main reasons settlement negotiations fail in divorce cases?

Jason Weis:

I would say settlement negotiations tend to fail either because of the parties or the facts or both. Um, when you're talking about parties that can't resolve disputes, I mean, what I would say there is that as much as we would hope everybody would be reasonable and rational, that's just not always the case. And after all, you are here for divorce, so to speak. So we often see issues in divorce with uh a lot of emotion that can be an obstacle to settlement and even mental health issues. Uh, certainly with divorce, there's a lot of anxiety and depression and stress, but there's also more significant mental health issues. We have a lot of issues that involve accusations of narcissism, um, other diagnosable mental health issues. And frankly, having done this now for a while, you see people that could probably be described as sociopaths and they can be certainly obstacles to settlement. When you're talking about facts, there's also several different factual scenarios that make settlement really difficult. I would say two that come to mind would be relocation cases, and the other one would be uh, let's say allegations of assault, whether that's physical or sexual assault. Those cases tend to be viewed, I would say, as kind of zero-sum cases. So with relocation, your child's either going to reside in Virginia or your child's gonna reside in California, say, and it's difficult to reach a settlement there because no matter how you split that or settle it, one parent's relationship with their child is going to fundamentally change. And with cases where abuse, let's say sexual abuse, is alleged, um, one parent is gonna have to cede the fact that this parent might, the other parent might have be, let's say, exposed to the abuser. And so with cases like that, often you need we just find that you have to go to court because there's just no good middle ground there. You're either gonna move or your child's gonna go be with somebody where you feel like there might be a safety issue. Aside from that, you know, I would say certainly people might have their own hidden motivations. You know, you might have somebody that just says, I want my day in court regardless, or you might have some punitive motivations sometimes that are kind of well hidden, where somebody wants to just drag somebody through the process for their own purposes. And certainly that's not a good thing, but I think it would be naive to think that people don't do that.

Charlie McDermott:

Yeah, so we're going to court, and obviously we want a skilled trial lawyer. So, Jason, what distinguishes a skilled trial lawyer from a general practice attorney?

Jason Weis:

Well, I having seen a lot and having mentored a lot of people, I would say that I think any lawyer can be a good trial lawyer provided they're prepared. The preparation is probably the most important thing. I would say the people that are the best, quote unquote, trial lawyers are the ones that know how to prepare for themselves and just have a lot of experience doing it. There's certainly people that are naturally better public speakers. There are people that are naturally very quick on their feet. But the reality is, I think for most people, a solid amount of preparation is gonna make the difference. And so if you're a nervous public speaker, you can practice a ton and get better at it. If you're not strong on the rules of evidence, you think somebody might take advantage of you that way, you can get really good at the rules of evidence. I mean, I tell clients that by the time we go to court, I'm gonna know their life better than they know it because I will just have drilled down into it. And we're gonna do a lot of preparation. I mean, I think good lawyers will prepare their clients so that they're we can put them in a situation where they can be as successful as you can be in a contested case. And so, you know, knowing the law, knowing the case, knowing the story you want to tell, and I guess preparing your client and your witnesses effectively to tell that story is about the best you can do. And that's what the best trial lawyers in my experience do.

Charlie McDermott:

Yeah. So obviously preparation is important, which you just covered. So, how does a strong trial lawyer prepare for court, especially when it comes to witness and evidence?

Jason Weis:

Well, what I would say there is that again, I've seen lawyers of all types, and I've worked with some lawyers who can literally pick up a file, read through it on the way to court, and do great. And it's all spontaneous. They like the idea that the client is not going to necessarily know what's coming, but the answers you get will be credible. And some lawyers really stand by that. I am absolutely not that type of lawyer. I'm I'm I will prep over prepare, if anything. I like to make sure that by the time I go to trial, again, I know everything about the case. And frankly, I know what the client's going to do and say almost better than they're gonna know. Um, by the time we go to court, my client is gonna know every question that I'm gonna ask them because we will have talked about it in advance and agreed that I'm gonna ask them those questions. They're gonna know what information I'm expecting to receive from them. That doesn't mean I always get it, but they're gonna have an idea and we're gonna almost play tennis. I'm gonna throw them a question they know, they're gonna give me an answer we know, and we're gonna go back and forth. And I do that in part um really to just minimize their anxiety. I mean, going to court is very stressful for people. A lot of people aren't in court a lot, and I've had cases where I've seen other witnesses who aren't prepared at all and they forget basic things like their kids' birthdays and names and things like that. And so I really want to make a point to make sure that my clients are fully prepared. As far as preparing evidence, that's really just a matter of gathering what you need, knowing what you need, gathering it, knowing how to get it into the evidentiary record, which can be its own challenges sometimes, and organizing it in a way that a judge uh would understand. So we use trial notebooks where clients and the judge can turn through different exhibits. I would say with the evidence, a big part of presenting evidence effectively to a court, at least in family law cases, is to be selective about what you want. Often there are thousands of pictures, there's thousands of text messages and emails. And the better trial lawyers are gonna pick the the best of that. They're gonna pick their story, they're gonna know that a lot of good information is gonna be left on the cutting room floor, but they're gonna have an idea where they can get in and out of the points they want to make, they're gonna tell a consistent story and not just wander because judges are they're human, they have limited attention spans. And if you start going to you know far afield where a judge doesn't immediately feel the impact of what you're saying, you could just lose their attention. Um, and so you know, when I work with a client uh prior to trial, we're gonna agree in what we're gonna say, we're gonna agree these are our best points, and I'm gonna put them in the position, the best position I can to help them make those points effectively.

Charlie McDermott:

Good, good stuff. So then, I know this is gonna be real helpful for your listeners. What specific qualities or experience your clients look for when choosing an attorney for trial work?

Jason Weis:

Well, I think the number one thing, and I've said this over and over again to different people, but regardless of who you select, whether it's, let's say, this family law firm or another one, select an attorney that does almost exclusively family law. And again, I say that having seen all kinds of different trials and seen lawyers from all over, but family law I think is a little different. Um, during my, again, 20 years, I've represented some of the, well, they claim some of the top trial lawyers in the in the entire United States. And even they will agree that family law is different because it touches on so many different things. It touches on civil litigation, on criminal litigation, it touches on real estate, it touches on contracts, it can touch on trust and estates. And so, because it covers such a wide berth, you have to be familiar right away with the issues that tend to come up, and you have to be familiar with how to address them. And so, whereas a lot of big firm lawyers will be, will have incredible knowledge in one narrow field, let's say, or have a great knowledge about sort of the how to work inside of a courtroom, because family law in particular has so many different areas that it touches on, it can be really challenging for somebody to come in and do it if they don't have a lot of experience. And again, having done this now for 20 years, I'm pretty familiar with the way people are going to raise certain issues with real estate or with contracts. I'm also, you know, familiar for better or for worse with some of the emotional issues that come with family law. And that creates its kind of own set of difficulties. So when you take all of these areas of knowledge and then you overlay on top of that a ton of emotion, where whether it's personal emotion because it's a marriage and somebody feels betrayed or feels like they've been abused, or whether you have mental health issues relating to those kind of things, you add on top of that the emotional issue of kids and how people treat their kids or what's best for your kids. It's just really a specialized field. And so I think the most important thing would be choose somebody that has that experience. Other things would be choose somebody you can communicate with because every lawyer is different. And some clients just need to be yelled at. Some clients you need to treat with kid gloves, some clients are great with emails, some clients only deal with phone calls. There's somebody out there for everybody. But during your console, one thing I would say, you know, think about not only does this person sound like they know what they're talking about and have a lot of experience, but is it somebody that you could see communicating well with? Are they going to respond to your emails right away? Do they have the bandwidth to handle your case? And realistically, is it somebody you can afford? Um, you know, at everybody has a different hourly rate. Everybody might want the very best and most expensive trial lawyer, but you've got to be realistic about what you can afford. And again, as I mentioned, as trials add, as we stack more and more issues, that's just more hours of preparation. And, you know, trial work, if it comes down to it, it's important work. You want to be prepared, and that preparation can get expensive. Um, you know, nobody ever says, man, my contested litigation and divorce was cheap. Um, it's just that's just not the reality. Um and so again, you want to try a lawyer that's kind of lived in this a little bit and can navigate that. Um I mean, that that would be my advice to people looking for for a lawyer if they know their case is going to go to court or they strongly suspect him.

Charlie McDermott:

Super, super. Great, great advice. How about uh misconceptions, Jason? What are some common misconceptions clients have about what happens in court?

Jason Weis:

Well, what I would say there would be it's certainly not like it is on TV. So it's not a flashy process by any means. Um, there are no surprises for the most part. Uh I mean, I think the the surprise that that can happen will be when a client isn't prepared and they don't understand what topics are going to be talked about, or the lawyer believes that an attorney's, or excuse me, a client's gonna answer one way and they don't. So you sometimes have those kind of surprises, but it's not like there are these aha moments often uh in divorce trials. I mean, the other thing is that surprisingly time moves very quickly in court, in my opinion. So people, I often have clients come to me and say, well, we have a full day for trial. Surely that's enough. And the reality for clients, and frankly, for a lot of young attorneys, is that a full day, no matter what jurisdiction you're in, doesn't amount to a lot of trial time for you. And the reality could be a full day could mean only three hours or so for you to put on your entire case. And that's you know, the direct of your client, maybe cross-examining the other party, maybe adding a witness or two, because there's bound to be objections that you've got to deal with. You have an opening and closing statement, and there are lunch breaks and uh other things. And so the time goes by very quickly, I would say that's kind of a misconception. And then obviously, I wouldn't say this is a misconception, but again, going back to cost, um a divorce, a contested divorce where you've got to go to court is likely gonna cost you tens of thousands of dollars. Uh, I tell clients that that it's very difficult to predict what a contested divorce case is going to cost because I don't always know what the other side is going to do, but I can guarantee you that I'll be prepared to address it. And so we've had cases that run the gamut from a few thousand dollars to over a million dollars, depending on what issues we need to talk about and how deep they go and what we need to do to accomplish the results that we need. And I think a good attorney-client relationship will allow you to sort of go into those uh those issues with your eyes open, the client's gonna understand, we're gonna have a collaborative discussion about what issues we want to address and how, so that everybody's on the same page. And what I typically tell clients is if we tell the story that we want to tell and the judge doesn't agree with us, because sometimes that happens. And I'll say any trial lawyer you talk to that says they've won every trial or they've ever had probably hasn't done a lot of cases or is probably not telling you the full truth because we don't control what judges do and we don't control the facts that we get. And sometimes what what a uh one attorney might view as a win, another attorney would view as a loss. But getting back to what I was saying earlier, if you get your story, you you agree with your client about the story you want to tell, and you tell that story, and the judge simply doesn't agree with you. I think at the end of the day, there's still some peace. Um, that certainly if the judge doesn't go your way, you can be disappointed. But you'll know that you you told your story, you put presented your facts, and the judge simply didn't agree, and that's life, unfortunately. With a lot of issues, certainly issues related to a child. Um, you can come back later. We can move to modify when certain things happen. So you might get subsequent bites at the apple. But I think again, if you work with your client as an attorney and you guys have that relationship, it's really our case together. I'm working with the attorney or with the client. It's obviously their family, but it's important to me. Again, I would be lying if I didn't say that I became, you know, often personally involved in some of the cases because I feel strongly. And as I'm preparing weeks on end, you know, I start to buy my own argument, so to speak. And I think frankly, it doesn't help because you know you're passionate about your case, you're passionate about trying to persuade the court on behalf of your client. And I think within reason, judges can appreciate that.

Charlie McDermott:

So yeah, yeah, you know, you have that conviction, right? That really uh you want to.

Jason Weis:

I mean, certainly you want to be credible with it, but it's hard. It's hard not to work with somebody for months and see what they go through and see the investment they've made and to make it your uh on your own and to put it up in front of a judge and see. I mean, I'm as as nervous as the next person after we put the evidence in um to see what a court's going to do. Um, but yeah, there I think there are there just there are times when going to court and having a contested case is just much more likely. I'm all for trying to settle cases if you can. I think that can be great. Certainly it's gonna be less expensive, but I think you have to be realistic about the prospect that there are going to be cases you got to go to court. We've got to litigate those cases, and you know, you'll want to find the right attorney to do that. Wow.

Charlie McDermott:

Well, Jason, this has been very, very helpful. Really appreciate you joining us today and sharing your expertise. And for our listeners and viewers, be sure to subscribe to Attorneys Dedicated to Family Law wherever you listen to podcasts. And if you found today's discussion helpful, please take a moment and leave us a review. It really helps others find the show. Thanks for tuning in, and we'll see you next time.

Intro/Close:

That wraps up this episode of Attorneys Dedicated to Family Law. We hope you found today's discussion insightful. If you have questions or need personalized legal guidance, visit us at currenmoher.com. Be sure to subscribe so you don't miss our next episode, where another of our experienced attorneys will tackle an important family law issue. Thanks for listening. Until next time, we're here to help you protect what matters most.