At least one trip to court is required in most divorce cases. This might be either for an Temporary hearing or final trial. Regardless of the typeof hearing, it is important for you to know what to expect and what is expected of you when you go to court.
The night before you go to court you should get to be early and get plenty of sleep., For obvious reasons, court can be a stressful and tiring experience. So, it is important that you come to court completely rested and ready to participate in the proceedings with a clear head.
If you have not been to court before, be sure you know how to get thereIf you are unsure of the location of the courthouse, parking facilities or the courtroom, please contact our office. You might also consider writing down directions to the courthouse the night before.
Determine how long it will take you to drive to court, and then increase that time by 50% to account for rush hour traffic and any other unforeseeable delays you might encounter. For example, if you estimate it will take you30 minutes to get to court, plan on leaving home at least 45 minutes before you are to be there.
Make sure that you have completed your court preparation on the night before your court date. By doing this, you will avoid rushing around the following morning. You should assemble any documents that we have asked you to bring with you. Lay out your clothes for the next day and,in general, have everything ready to go for when you get up. Bring reading material or a friend to keep you company, there is a lot of waiting time.
Arriving at Court
Most courthouses now have metal detectors at the front door. Make sure you are not carrying anything that might be considered a weapon, such asa pocket knife.
Inside the courtroom go to the bailiff and tell him your name so that you can be checked in. Do not panic if I am not there exactly at the scheduled time or when the court calls the docket.There are often several stops in the courthouse that must be made. I will arrive within "acceptable tolerances" within the system.
Administering the Oath
Before any testimony takes place the judge will administer the following oath to witnesses by instructing them to raise their right hands. The clerk will then ask:
"Do you solemnly swear to tell the truth, the whole truth and nothing but the truth?
In a clear and audible voice say "I do."
You should understand that your testimony is being given under penalty of perjury. This means that you can be charged with and convicted of a crime if you knowingly tell a lie when you testify.
Stipulations and Unresolved Issues
The judge will then want to determine which issues have been settled by agreement ("stipulations") and which ones remain unresolved. One of the attorneys will then recite any agreements and list the issues which remain "contested." In many courts, the judges insist that all agreement be put in writing and given to the clerk before the case is called.
After the judge reviews the written agreement or listens to the statement of the settled issues, he or she will ask the parties if they understand the agreement. Once the parties tell the judge that they understand the agreement and are willing to abide by its terms, the judge will usually make a statement confirming the agreement as a court order, such as, "The court accepts the stipulations of the parties and confirms it as an order of this court."
Once the preliminaries are completed the actual hearing or trial begins.If the hearing is a temporary hearing or for modification of an existing orders, the party who filed the request for relief puts on his or her case first. In the case of a final trial, the petitioner - the person who filed the case - goes first.
The hearing usually begins with the attorney calling his or her client for "direct examination," although that is not always done. Sometimes an attorney will decide to call a witness "out of order" because that witness cannot stay long or for strategic reasons.
During direct examination the attorney will ask questions that will enable the judge to understand his or her client's position. In most cases the attorney will have previously discussed direct testimony with the client and witnesses, so the questions should not come as a surprise.
Rules of Evidence in Direct Examination
In conducting direct examination, there are certain rules of evidencethat must be followed. The most common rule is that any question must be"relevant" to the subject matter. For example, if the only contested issueis child support, a question about the client's political affiliation wouldbe irrelevant and, therefore, objectionable.
A question cannot call for "hearsay" testimony. Hearsay is an out of courtstatement made by someone which is presented to prove the truth of thestatement. Certain types of statement by the parties are excluded from thehearsay rule and will be allowed in court. An exampleof a question that is objectionable under the hearsay rule is the following:
Mrs. Smith, did Mr. Smith's employer tell you how much Mr.Smith is being paid?"
The only way this information can be presented to the judge is to actuallysubpoena the employer to come to court or to subpoena the employer's records.
Another important rule of evidence in direct examination is that thequestion must not "lead" the witness. A leading question is one that suggests the answer. For example, where the issue is spousal support, it would be improper for the wife's attorney to ask the wife,
"You haven't had a job for twenty years, have you, Mrs. Smith?"
Instead, the attorney should ask,
"When is the last time you had a job?"
If the attorney has properly prepared the wife for her direct testimony,she should quickly answer,
"Twenty years ago."
After direct examination is completed the other attorney is permitted to cross-examine the witness. Cross-examination gives the other attorney an opportunity to test the credibility of the witness and, on occasion,show the weaknesses in the other party's case.
Rules of Evidence in Cross-Examination
The attorney asking questions on cross-examination must also follow the rules of evidence, but some flexibility is allowed. For example, leading questions, which are not allowed in direct examination, are permitted in cross-examination. However, the rules of relevance and hearsay must still be followed.
During cross-examination, the attorney is not permitted to pose questions that are "argumentative." For example, an improper question might be,
"Mr. Smith, are you seriously asking the court to believe that you can't find a job?"
These types of questions may be common in courtroom scenes on television,but they are not allowed in real hearing and trials.
After the completion of cross-examination, the attorney who called the witness is permitted to conduct "re-direct examination."
An attorney will ordinarily conduct re-direct examination if his or her witness said something inaccurate or misleading while being cross-examined.For instance, where the issue is child custody, under cross-examination the following question and answer might take place:
Question: Isn't it true that you leave your child home alone?
Answer: Yes, it is.
If the parent's attorney knows that his client does not actually leave the child home alone, he might ask the following question during re-direct examination:
Question: When you were being cross-examined, you said you leave your child home Alone. Isn't that true?
Answer: Well, not exactly.
Question: What did you intend to say?
Answer: Sometimes I leave my child home alone with her 16 year-old sister.
After re-direct examination is completed, the other attorney can ask more questions in "re-cross examination," in which the scope of questions is limited to the scope of the re-direct examination.
General Rules for Testimony
Regardless of which attorney is conducting the examination, there are several rules that you should follow when you are testifying:
* If you prematurely answer a question you might give the cross-examining attorney some information that he or she had not thought of asking.
* The court reporter can only record one person talking at a time. So,if you start talking while the attorney is asking the question, the court reporter may not be able to keep a clear record of the proceedings.
* If the other attorney questioning you and Ms. Wanger wishes to object,she will not have any opportunity to make the objection if you answer immediately.
Listen carefully to the question that you are being asked.
Do not guess at the answer to a question. Instead of guessing, simply say that you do not know or do not remember the information requested. However,you may estimate an answer, such as an approximate date or amount of money.
Wait until the question has been completed before you start to give your answer.
State your answers clearly. If the question asks for yes or no answer say"yes" or "no," instead of "uh huh" or "uh uh."
Answer only the question that is asked. Never go beyond the scope of the question.
Pause a few moments after the question has been asked before you start talking. This will give you time to think about the question and formulate your answer. It will also give me time to make appropriate objections to the judge.
Stop talking if the judge or either of the attorneys starts to talk.
If you feel physically or emotionally unable to continue with the examination you should make that fact known to the judge immediately.
A judge decides the case by applying the law to the facts of the case.The facts are based on the evidence that is present to the judge during the trial.
Evidence is usually presented in two forms: oral testimony and documents.When an attorney wishes to present documentary evidence there are several steps that must be followed:
Marking of Exhibits
The first thing the attorney does is to request that the clerk "mark"the document as an exhibit. This involves assigning a number or letter to the document so that it can be easily identified whiled the trial is in progress. In most courts written evidence submitted by the Petitioner is assigned numbers, while the Respondent's exhibits are given letters.
When an attorney wants to have an exhibit marked, he or she says, "Your honor, I would like this [letter, contract, etc.] to be marked as Petitioner's Exhibit 1."
If there are going to be a significant number of exhibits presented,the judge will want the attorneys to have the exhibits marked before the trial starts. This avoids using court time to mark exhibits.
Marking an exhibit does not guarantee that the judge will allow it to be "received." Before that happens, the attorney must first establish the"foundation" for the receipt of the document. "Laying a foundation" is the process by which the attorney submitting a document shows the judge that it is authentic.
In dissolution cases it is common for a spouse's payroll records to be subpoenaed to court. Before the judge can consider such records, the attorney submitting them must first have the spouse's employer testify that the document is true and correct. Once this is done, the records will be received as evidence.
Once the foundation has been properly laid, the propounding attorney will ask,
"Your honor, I am requesting that this document be received as Petitioner's exhibit 1."
Before the judge receives an exhibit, the other attorney will be asked if there are any objections to the document. As with oral testimony, there are many grounds for objecting to the receipt of documentary evidence,such as relevancy or hearsay.
Respondent's or Responding Party's Case
After the requesting party in an Order to Show Cause hearing or the Petitioner in a trial has presented all of his or her evidence, that party's attorney will say, "Your honor, Petitioner rests." It is then time for the other party's attorney to present his or her case. The same procedures and rules discussed above are followed during the presentation of the other party's case.
When the responding party or the Respondent has finished his or her case, the trial is not necessarily over. The first party's attorney now has the right to call "rebuttal" witnesses to contract the other party's evidence. The most common rebuttal witness is the other party, but any witness can be called for rebuttal purposes.
Once the testimony stage of a final trial is completed it is time for the attorneys to make their "closing arguments" to the judge. In the closing argument each attorney summarizes the important points of the case and tells the judge why his or her client should win on the various issues involved in the case. In their closing arguments the attorneys will often refer to statutes or relevant appellate court decisions that are relevant to the case.
After the arguments are completed the judge can either announce the decision orally in open court or take the matter "under submission." This means that the judge is going to think the case over and issue a written decision within a few weeks.
Completion of the Hearing or Trial
The reference in the title of this discussion to your day in court is somewhat misleading. Because of the staggering number of dissolution cases that are being filed, family law courts are becoming overburdened with cases. This means that even if your case is on calendar for a particular day, there is no guarantee that will be completed, or even started, on that day.
In fact, in many family law courts as many as one-half of the matterson calendar in a particular day have to be continued to another day for completion. In some courts, it can take many separate court days, spread out over six months to a year, to complete a lengthy trial. This can cause problems for the attorneys in the presentation of their cases, not to mention the inconvenience to the parties and witnesses. Unfortunately, it is a fact of life in the judicial system.