Practice Tips from Judge Firdaus Dordi: Family Law Trial

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Hi Judge Dordi,

I'm preparing for a family law trial, and I want to make sure I'm ready.  The issues will be custody, support, and division of assets, including my client's business.  I expect the trial to last about a week.  I have done a number of short evidentiary hearings and trials, but this will be my first major trial experience.  Do you have any tips for me - or maybe any advice on avoiding common mistakes?

Judge Dordi’s response,

My first piece of advice is to not lose sight of the big picture. In family law, credibility and preparation matter more than theatrics. You are not performing for a jury. This will be a bench trial, and your audience will likely be highly sophisticated and quite familiar with the case. It is also important to remember family law trials, like the one you face, will cover distinct issues where the burden could switch from issue to issue. Trials, like yours, are known as “A-Z trials” because they cover so many family law issues—custody, support, division of assets—including the source of their livelihood. When there are so many diverse issues in dispute, your client’s entire life may feel like it is on trial. Your pretrial preparation, and your calm and competence through trial will be an enormous source of comfort to your client. Here are some tips to guide you.

1. Know Your Audience

Go observe a trial before your judicial officer well in advance of your trial. In preparing your client for trial, it may be good for them to observe the judicial officer, too. Find out the judicial officer’s level of formality during a trial; how they like exhibits to be presented (tabbed and indexed in binders, digitally, or some other way); whether they prefer declarations in lieu of direct examination; do they want evidentiary objections to declarations and stipulations to the admissibility of exhibits in advance of trials; do they expect a meet and confer before trial and joint statements of disputed and undisputed issues; and how strict they are with time estimates.

Ask the Judicial Assistant about the trial presentation equipment in the courtroom. See if they will let you practice using it. Familiarizing yourself with the space and the audience can allow you to stay focused on the case during trial. It will also enable you to present your case in the most effective and efficient manner.

Judicial officers generally review the entire case file, including temporary or pendente lite orders, in advance of the trial. Be sure to review the pendente lite orders, as well as the reasoning of those orders, as they may contain important information about the judicial officer’s impressions of the issues. While those impressions could change based on the facts presented at trial, it helps to have a command of the litigation history.

Check with members of the Family Law Bar who have appeared frequently and recently before the judicial officer. They may also provide you valuable insights into your audience.

2. Comply with Pre-trial Orders

Judicial officers generally check to see whether parties have complied with their case management orders, including briefing schedule orders. In Los Angeles County, most judicial officers utilize the “LASC FAM 229” form, titled “Briefing Schedule Order.”

The Briefing Schedule Order sets forth deadlines and other important information. It also includes the potential consequences if the orders are not followed. (See LASC Local Rule, rule 5.14.) Complying with the responsibilities and obligations set forth in the Pre-trial Orders is critical. In addition to avoiding potential sanctions, compliance with the orders allow for an efficient and orderly trial.

3. Write a Clear and Concise Trial Brief

The trial brief serves as a preview of your case. It is a chance to make a strong first impression. In a sentence or two state your theory regarding each major disputed issue. Conciseness and clarity are keys to an effective trial brief. Identify the relief you will be seeking, as well as the law and facts that support that relief. Use bullet points as a device for brevity and clarity. Provide citations for the principles of law that you will rely upon, especially if your arguments rest on counterintuitive or nuanced propositions of law. This way, the judicial officer can review and recognize them in advance of the start of trial. For example, if imputation of income or demonstration of earning capacity are at issue in a contested child support trial, make sure you identify the legal authority that supports your position. Similarly, if only three of the fifteen permanent spousal support factors are at issue in your case, let the judicial officer know that in your trial brief. This will likely save valuable time and other resources at trial.

Remember, the other side will also be submitting a trial brief. Be ready to embrace the bad facts. Address them up front in your trial brief. You do not want to give off the impression that you were hiding something before you ever step into the courtroom.

4. Prepare, Prepare, Prepare

Detailed preparation of examinations, focusing on the legal standards and the relevant facts, will allow you to demonstrate your competence in the courtroom. Think through the objections to your evidence. Ensuring your evidence is admissible will also allow for efficiency and effectiveness.

On cross-examination, be ready with your impeachment evidence. Remember the three Cs of impeachment: confirm (conflicting testimony), cement (prior sworn testimony or statements), and confront (with prior contradictory testimony). Be sure to subpoena essential witnesses. Do not rely on informal promises from opposing counsel or the false presumption that the other side must call every person on their witness list. Consider written stipulations regarding undisputed facts and requiring specified witnesses be available at trial.

Ensure you have managed your client’s expectations of the trial.  Make sure they know the strengths and weaknesses of their case based on the law and the facts. Practice cross-examining your client. Your case could rise or fall on how your client handles cross-examination—especially when credibility is at issue and testimony cannot otherwise be corroborated. Teach them to wait for the rulings on evidentiary objections before answering any questions, so they don’t answer a question when the judicial officer sustains your timely objection.

The thorough preparation of your expert(s) is also essential. Help your experts simplify complex issues for the judicial officer. Research the cases in which they may have testified previously and taken a different or opposing position, especially if it was in front of your judicial officer. Adequately anticipate potential cross-examination, so you can neutralize it or  properly rehabilitate your witness.

5. Civility and Zealousness Are Not Mutually Exclusive Ideals

While you are expected to be a zealous advocate for your client, the California attorney oath requires that you “strive to conduct [your]self at all times with dignity, courtesy and integrity.” Thus, civility and zealousness are not mutually exclusive. In fact, some of the best advocates are usually the most civil. They let their preparation and presentation speak for them, and avoid engaging in petty microaggressions, such as name-calling or belittling the opponent, at all costs. The law is a noble profession, and the integrity of the judicial system and those involved in it are on display during a trial. Safeguarding the integrity of the process should be one of your topmost priorities every time you step inside a courtroom.

6. Other Things to Remember

Request or reserve a court reporter to confirm you have a verbatim record of the proceeding. The court may not have a court reporter available. If your client cannot afford a court reporter, or if the issues at trial involve fundamental rights (which they almost always do in family law cases), request that the electronic recording equipment in the courtroom, if available, be employed. (See LASC General Order, filed 9/5/24.)  If there is no electronic recording equipment in the courtroom, take good notes, and request that a settled statement of the facts be provided at the end of each trial day or the following morning for approval by the judicial officer. (See Cal. Rules of Court, rule 8.137.) If your client has qualified for a fee waiver, assert their right to a verbatim record pursuant to Jameson v. Desta (2018) 5 Cal. 594 (An official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request.)

Avoid repeating and over-arguing points. That may irritate even some of the most patient judicial officers and have them pay closer attention to the clock.

Discuss courtroom behavior with your client. They should not be speaking on the record when they are not testifying without your consent. Discuss with them the importance of not reacting to testimony and rulings or rolling their eyes when they disagree with something that happens.

Be mindful of the time estimates you have provided and adhere to them as much as possible.

If you will be requesting a statement of decision, be sure to identify the principal controverted issues you want the court to address and request it in a timely manner.

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Judge Dordi was appointed to the Los Angeles Superior Court in 2016. He received his J.D. from Loyola Law School (Los Angeles). Prior to his appointment to the bench, he served as  a state and federal law clerk, as Deputy Federal Public Defender in the Central District of California, and as a founding member of Dordi, Williams, Cohen, LLP (now Cohen Williams LLP). His current assignment is in the Family Law Division. He presides over Department 24 (a split home court/settlement court) at the Stanley Mosk Courthouse.