1. Trials: Preparation for Trial

It used to be that a lawyer could announce “ready for trial” if he or she had the witnesses and documents available to prove his or her side of the case. Practically, this meant that if the case was not too terribly complicated, much of the preparation could be done at the last minute. A last-minute witness could be interviewed the night before the trial and called in to testify the very next morning. A document that had been overlooked until just before trial could simply be marked with an exhibit number and introduced into evidence.

All of this has changed with modern rules of discovery. If the other party has requested information about witnesses, documents, and other evidence that are to be used in the trial, this information must be transmitted to the adverse party well in advance of the trial or it cannot be used. As a practical matter, this means that, if your divorce is complex and contested, you and your lawyer must be ready for trial at least thirty days before the case is set for trial. The Texas rules of court require that most discovery material and answers be transmitted to the opposing party more than thirty days before the trial. In other words, if your spouse’s lawyer has requested the names of witnesses and you fail to properly provide the name of a crucial witness more than thirty days before trial, you probably won’t be allowed to call that witness. The same is true should you fail to provide copies of a document you wish to introduce in evidence.
For a litigant or lawyer who is not prepared, denial of admissibility of critical evidence can be brutal. It can work hardships even on well prepared parties who have properly done all their homework well in advance. Witnesses and documents, after all, do sometimes show up the day before the trial or during the trial. Sometimes courts make exceptions and allow the use of this last-minute evidence that could not have been discovered in advance, but admissibility is not a certainty.

The reason for this policy requiring evidence to be turned over to the opposition well in advance of trial is to avoid the old, historic trial-by-ambush. Modern trial lawyers frequently point out that trial-by-ambush has been replaced by discovery-by-ambush. That is to say, much discovery is now sent to the opposing party in the hopes that a failure to “jump through all of the hoops” in filing discovery answers will mean that a party will not be able to get crucial testimony or documents into evidence. The real result usually is that the opposing party responds in kind, sending a correspondingly difficult-to-answer set of discovery back to the original sending party. Hence, when the case is set for trial there is a “balance of terror” with both attorneys concerned about whether all of the hyper-technical i’s have been dotted and t’s crossed. This concern is lessened to the extent that a lawyer has spent much of the client’s money paying either the lawyer or the paralegals to double- and triple-check discovery technicalities. Money is usually spent on Motions for Protective Orders and hearings before the court to make certain that the other side’s overly broad discovery is not going to be used as a device to exclude legitimate evidence at trial.

In short, much of the “trial” of your case must take place weeks or months before you get to the actual trial, or it’s too late.


Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 12, pp. 160-161.