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| Jordan McKie |
Trial preparation begins at the initial consultation
Clients come to lawyers because they need help. Our first task is to understand them — their concerns, their goals and the context in which they live. The first consultation contains the seed of trial preparation. From the very first meeting, we are collecting the raw materials of a case. That includes factual information and clues about what themes may carry through to trial.
Every case needs a theory and a theme. A trial isn’t just about presenting facts; it’s about telling a coherent, persuasive story that aligns with the law and the evidence. That narrative begins to take shape during the intake process. Listening carefully, spotting recurring patterns or ideas, and helping the client shape realistic goals based on law and evidence all feed directly into how the case will eventually be presented at trial.
Disclosure must be taken seriously
Disclosure is not just a procedural step. In family law, it’s often the battleground on which the rest of the case is won or lost. Lawyers need to know — early and in detail — what our client’s financial and parenting situation looks like. We also need to be proactive in pursuing disclosure from the other party.
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A client’s aspirations are not a substitute for proof. We do our clients a disservice when we let them believe that trial outcomes are determined by passion or principle rather than facts and documents. Our job is to turn the client’s version of events into a provable case. That means chasing disclosure and integrating it into a clear evidentiary picture.
Motions must support the trial strategy
Many files involve interim motions for parenting, support or procedural relief. These are not ad hoc mini cases. Each motion should be seen as a step in a longer strategy.
Interim motions offer opportunities and risks. Sometimes, they can clarify or stabilize a situation. But every affidavit and position taken is a preview of the trial to come. A judge who reads inconsistent positions across different stages may begin to distrust the case. And some short-term wins — like opposing a co-parent’s travel plans without good reason — can undermine your client’s credibility in the long run.
Motions are also a critical opportunity to obtain disclosure. If you’re bringing a motion for interim spousal support, why not also seek updated income disclosure? If you’re opposing shared parenting, make sure the evidentiary foundation for that position will stand up later. Every motion should be used as a strategic step toward building or refining your trial case.
Preparation must begin early
A trial date may be months away, but time moves quickly. Trial management conferences impose disclosure and witness deadlines. Waiting until the month before trial to prepare is a recipe for panic — and missed opportunities.
Reviewing the file thoroughly well in advance helps identify:
- Missing disclosure (from your client or the other party)
- The need for expert reports
- Previously overlooked witnesses
- Weak points in the case narrative.
Identifying these issues early allows time to address them. It also positions the party to comply fully with trial scheduling orders. Courts do not reliably reward last-minute requests to add documents or witnesses. The best way to avoid being caught off guard is to treat trial preparation as a continuous process, not a discrete event.
Themes matter
Every trial lawyer knows that cases are won and lost on facts. But it’s not just about which facts are admitted. It’s about how those facts are organized and understood.
Judges, like everyone else, are susceptible to cognitive overload. A pile of evidence with no structure is exhausting and confusing. But a clearly articulated theme — one that ties facts together into a meaningful whole — can carry a case. Whether it’s a story about financial betrayal, devoted parenting or manipulative litigation tactics, a theme helps the judge understand why your client’s position makes sense.
A good theme:
- Is grounded in facts
- Aligns with your legal theory
- Helps the judge remember and relate to your client’s experience.
Crafting that theme takes time, and the best time to start is early. As disclosure arrives and witness statements emerge, keep returning to your theme. Ask: Does this support the story we’re telling? If not, do we need to revise the theme — or rethink how we’re using the evidence?
Trial management conferences are not just formalities
Trial management conferences (TMCs) can feel administrative. But they are actually pivotal moments in a case. They lock in the issues, set the boundaries for trial evidence, and offer opportunities to frame the case for the judge who may eventually hear it.
Well-prepared counsel treat the TMC as a dry run for trial. That means:
- Having a clear witness list and knowing what each witness will say
- Being able to explain how each issue will be proven
- Having your exhibits identified and organized.
A good TMC can shape the judge’s expectations and encourage settlement. A disorganized one can lead to restrictions that damage the trial presentation.
Final thought: Be the guide
Clients often think of trial as a showdown. In reality, it’s more like a carefully choreographed presentation. The lawyer’s job is not only to advocate, but to guide the client through a long and complex process where every step builds toward the final day in court.
That guidance must begin early. It includes honest conversations about goals, careful organization of facts and documents, and strategic decisions about what motions to bring and how to position the case. Trial preparation is not about cramming. It’s about methodical, informed, forward-looking work.
Trial lawyers cannot just know the law — they must know how to build your case from day one. And they treat trial not as a risk to be feared, but as a challenge to be met with preparation, skill and a clear plan.
This is part two of a six-part series. Part one: Navigating self-represented litigants in family law trials.
Jordan McKie has a litigation and appellate advocacy practice that focuses on family and estate law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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