Advisory Opinions

Instead of going to a formal trial before a judge, the parties and their attorneys may submit their cases to one or more experienced family law attorneys for an advisory opinion about how the case probably would be decided if it went to a court in the state. In effect, this is a mini-trial that is not binding.

The attorneys for the husband and wife submit their cases to the family law attorney. With the clients present, the attorneys for the husband and wife make oral presentations and submit documents. The amount of time for this “mini-trial” is set by agreement, but one to four hours is a common amount of time. After submission of “evidence,” the experienced family law attorney issues an opinion and the reasons for it. In many cases, the advisory opinion induces the parties to settle the case, although they still have the right to proceed to a trial before a judge.

In some cities, there is an established panel of attorneys who issue advisory opinions. The attorneys may hear cases and issue opinions at no charge or at a specified rate, depending on local custom. If there is not an established panel of family law attorneys to issue advisory opinions, clients and their attorneys still could seek out an attorney who would be willing to serve in such a capacity.

A variation on this approach is for the attorneys to talk to a judge before trial. The attorneys will lay out the essential facts and arguments of their case and ask the judge for an informal opinion. If the judge is willing, the judge may say something along the lines of, “If these are the facts that are proven at trial, this is how I am likely to decide... On the other hand, if this fact is different, my decision will be different.”

Some judges will allow clients to sit in on these meetings; others will not. The judge’s decision to allow a client to sit in on such a meeting (sometimes called a settlement conference) may turn on the judge’s perception of whether it will help the case or not. Judges do not want clients to become disruptive or emotionally upset at settlement conferences. In addition, some judges are concerned that if the client hears the judge say, “Here is how I am likely to decide the case (based on certain facts),” the client will assume the judge is prejudiced. In fact, a judge’s comments at a settlement conference do not mean the judge is prejudiced. It usually just means that if the parties prove a certain set of facts, a certain result can be expected. If different facts are proven, there would be a different result.