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The Progressive Lawyer: Telling Your Client's Story at Trial

By Curtis J. Romanowski
September 26, 2011

We are practicing at a time when relatively few matrimonial cases are tried to verdict. Although most cases settle, the vast majority of them do so within the context of a litigated dispute. Since the possibility of trial is always present in this context, coupled with the possibility of settlement, a binocular perspective that entertains and plans for both possibilities simultaneously is by far the best approach, regardless of how the case is resolved.

Every one of our jurisdictions operates under statutory and case laws, which require factual elements to be proved in order to prevail. None of our multi-factor statutes, however, provide specific guidance concerning relative weight, priority and application of their familiar elements. Much is left to the trier of fact and law. Some jurisdictions include juries in the fact-finding process; most do not. The number of jurisdictions that have abandoned, or substantially eroded the concept of marital fault, has increased, but some convene jury trials on issues of marital fault and even moral turpitude.

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