At least one trip to court is required in every divorce case. There might be more. 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 bed 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. (Easy for us lawyers to say, much harder for parties to accomplish, especially at a temporary hearing where the case has just started and there is much emotion and uncertainty.)
If you have not been to court before, be sure you know how to get there If you are unsure of the location of the courthouse, parking facilities or the courtroom, please contact your lawyer. You might also consider writing down directions to the courthouse the night before.
Don’t be late. 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.
Make sure you bring what you supposed to have for court. On the night before your court date, should assemble any documents that your attorney has asked you to bring with you, perhaps even laying out your clothes ( if you have any question about what is appropriate–and more importantly–what is not appropriate for court, ask your lawyer) for the next day and, in general, have everything ready to go for when you get up.
Arriving at Court
Before your court day, be sure to ask your attorney where he wishes to meet you at Court. This will usually be in the hallway outside the courtroom where your case is set to be heard. When you get to the courthouse, go directly to the courtroom where your matter is scheduled to be heard, unless your attorney has asked you to go somewhere else.
Most courthouses now have metal detectors at the front door. Make sure you are not carrying anything that might be considered a weapon, such as a pocket knife.
Outside the courtroom the clerk will have posted the calendar, which is a listing of cases scheduled for that day. Make sure your case is listed on the calendar. If it is not, you might be in the wrong courtroom or on the wrong floor.
If you do not see your name on the calendar and cannot find your attorney, go into the courtroom and talk to the bailiff or the clerk. If, after talking to the courtroom personnel, you still do not know where you are to be, go to the nearest telephone and call your attorney’s office for instructions.
Besides the judge, there are usually three other people in most courtroom.
The bailiff is a uniformed officer who is assigned to assist in the operation of the courtroom. He or she (many in the Family courts are women, including bailiffs) is usually the first person you talk to when you enter the courtroom.
The bailiff has various functions in the courtroom. Primary among this is the job of maintain order. This applies to anything from asking people to stop taking while court is in session to physically subduing people who become violent. In enforcement actions, the bailiff takes a person to jail if that if what the Judge orders.
The Court Clerk
The court clerk is the man or woman who is responsible for the management of the court. In the morning, before court starts, the clerk gets all of the files for the day from the clerk’s office and gives them to the judge. When the court opens up, the attorneys and the people who are there without attorneys are usually required to “check in” with the clerk (or, in some courts, the bailiff). This means that they are to advise the clerk that they are present. The Court Clerk is not often in the courtroom but remains in the Clerk’s office adjacent to the courtroom. In some courts, a Court Coordinator may be responsible for the “trial docket,” while the Clerk is responsible for the “temporary docket.”
The Court Reporter
As shown on TV and in movies, the court reporter records everything that is said while court is in session, using a silent recording machine. After your hearing is completed, either your attorney or the other attorney may request the court report to prepare a transcript of the proceedings. This a verbatim script of everything that was said by the judge, attorneys and witnesses in your case.
In some courthouses, court reporters are being replaced by sophisticated tape recording and video systems that are operated by court technicians. Because they are significantly less expensive than a court reporter, these systems are becoming more popular, although some people believe they are not as accurate as a court reporter.
In some Courts there may not be a Court reporter for temporary orders hearings, unless one of the parties makes arrangements in advance to procure a reporter for their hearing, many times at the expense of the party requesting the reporter..
After taking the bench the judge usually calls the docket. The purpose of this is to enable the judge to determine how many cases are actually going to be heard and how long each one will take. With this information, the judge can plan the sequence of the hearings.
When the docket is called the judge simply calls each case in order and asks the attorneys or pro se litigants (people who are representing themselves) how long they estimate it will take to have the case heard.
During the docket call there may be one or more cases that are not ready to be heard, either because one or the attorneys has not arrived or because the attorneys are negotiating the case in the hallway. When this happens, the judge may put the case in another stack for “second call.” This means that the judge will call the case later in the morning.
When the docket call is completed, the judge has a list of cases that are ready to be heard. The judge will then call the cases for hearing, generally with the cases that will take the shortest time first. These are usually cases in which the attorneys are simply going to recite the terms of an agreement or where one party has defaulted and is not expected to show up. After these brief “prove-ups,” the judge will proceed to the first contested case.
Hearing or Trial Preliminaries; Review of Pleadings
There may be a substantial difference in the proceedings on a “Temporary Orders Docket”–where the case has just been filed a few days or weeks previously, and a “Trial Docket”–which is to be the final hearing in the case. Generally, Court rules require the attorneys to file their papers (“pleadings”) before the hearing date. This gives the judge and the attorneys an opportunity to know what each side is going to ask the judge to do. Before the judge comes out in the morning he or she will usually have read the court papers that have been filed and will be familiar with the “issues” that are to be decided.
If you are in court for the final trial of your case, both attorneys may have given the judge a “trial brief.” This is an outline of the case and the issues which are going to be litigated.
Where there is a complex or unique legal issue, the attorneys might also give the judge a “Memorandum of Points and Authorities,” which is a discuss of relevant legal precedents.
If financial issues, such as child support, spousal support or attorneys fees and costs, are to be decided, each attorney will also be required to give the judge their client’s current Financial Information Statement. The Court also may permit (or require) oral opening argument, in which the lawyers give a thumbnail sketch of the case and their client’s position.
Stating of Appearances/ Announcement
When your case is called by the judge, both attorneys and the clients (the “parties”) step forward and take their places at the counsel table. In some Courtrooms, the attorneys will sit on the inside chairs so that the clients sit in the chairs at opposite ends of the table. Sometimes the attorneys will sit with the parties between them, especially if a lawyer wants to prevent the other lawyer from having “wandering eyes” that would look at materials that may be confidential. The Attorneys will generally stand up, and go to the podium (if the Courtroom has one, and that is the judge’s procedure) and then identify themselves, making their “appearances for the record,” and announce “Ready.”
Administering the Oath
Before anything takes place the judge will administer the following oath to both parties by instructing them to raise their right hands, and then asking:
“Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?”
In a clear and audible voice, all witnesses in the courtroom are required to say “I do.”
If your religious convictions prevent you from swearing to God the clerk will administer another oath that does not contain a reference to God. Please advise your attorney if you wish the alternative oath administered to you. (I have personally never seen this happen.)
In either case, 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. (Ask Mark Furman about perjury.) The Judge, upon request, will excuse non-party witnesses from the courtroom to await their giving testimony and will admonish them not to talk about the case to anyone.
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 agreement of the parties and confirms it as the order of this court.”
Once the preliminaries are completed the actual hearing or trial begins. If the hearing is an Motion for Temporary Orders or for modification of an existing orders, the party who filed the Motion puts on his or her case first. In the case of a Divorce trial, the petitioner – the person who filed the case – goes first.
The hearing usually begins with the Petitioner’s or Movant’s 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 evidence that must be followed. The most common rule is that any question must be “relevant” to the subject matter. For example, if the only contested issue is child support, a question about the client’s political affiliation would be irrelevant and, therefore, objectionable.
A question cannot call for “hearsay” testimony. Hearsay, basically, is anything said by another person who is not present in court. The question is objectionable if the answer to the question is being offered for its truth. An example of a question that is objectionable under the hearsay rule is the following:
Mrs. Jones, did Mr. Jones’ employer tell you how much Mr. Jones is being paid?”
One proper way for this information to be presented to the judge is to actually subpoena the employer to come to court or to subpoena the employer’s records.
Another important rule of evidence in direct examination is that the question 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. Jones?”
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 answer,
“Twenty years ago.”
Many times leading questions are permitted in direct examination to speed up getting preliminary information before the Court.
After direct examination is completed the other party’s 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.
In cross-examination the attorney asking the questions is limited to the scope of the questions asked on direct examination. However, after the first “round” of questioning of a witness, the Judge may start restricting questioning to the issues explored in the last lawyer’s questioning. Thus, if the direct examination was limited to question concerning child support, the attorney conducting cross-examination cannot ask questions about community property.
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 would be,
“Mr. Jones, 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. See the quotes in the Humor articles for humorous examples of “bad” questions.
After the completion of cross-examination, the attorney who called the witness is permitted to conduct “re-direct examination.” These questions must be limited to the subject matter of the cross-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:
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 this the attorney does is to request that the court reporter “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.
When an attorney wants to have an exhibit marked, he 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 pre-mark the exhibits prior to trial. This avoids using court time to mark exhibits.
Marking an exhibit does not guarantee that the judge will allow it to be “received” or “admitted.” 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 and admissible into evidence.
In family law cases it is common for a spouse’s payroll or other business records to be subpoenaed to court. Before the judge can consider such records, the attorney submitting them must first have a person with knowledge (usually the spouse’s employer) testify that the document is true and correct. Once this is done, the records will be admitted into evidence.
Once the foundation has been properly laid, the propounding attorney will ask, “Your honor, I offer [the document to be admitted] Petitioner’s exhibit 1.”
Before the judge admits 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. If there is no objection, or the objection is overruled, the Judge will admit the exhibit into evidence.
Respondent’s or Responding Party’s Case
After the requesting party in a Temporary Order 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. Sometimes, much of the second party’s case has already been presented to the Judge.
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 contradict the other party’s evidence. The most common rebuttal witness is the other party, but any properly disclosed witness can be called for rebuttal purposes.
Once the testimony stage of the 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 or the jury in the rare cases where one of the parties has insisted on a jury for custody determination or other issues, 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.
In some cases at final trial, the Judge will have the attorneys submit their arguments in writing. Where this is the practice, the judge will usually order the Petitioner’s attorney to submit a closing argument within a short period of time, followed by the Respondent’s closing argument about a week later, and then a rebuttal argument by the Petitioner shortly after that.
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. For temporary matters, the Court most of the time makes its written ruling at the end of the hearing and gives each side a copy of the written ruling.
The Never-Ending Hearing
Because of the staggering number of divorce and modification 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. Sometimes, your hearing may start, but be continued to resume on a date weeks or months away.
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. It reminds you once again that it is usually better to take control of your own situation by trying earnestly to work out an acceptable agreement so that all this can be avoided.