Recently, my partner, Mark Ashton, in our Exton (Chester County, Pennsylvania) office wrote an excellent post on our Pennsylvania Family Law Blog entitled "How Do Trials Work." Too see his post, click here.
While much of the trial experience is the same, there are differences in New Jersey practice and procedure. For instance, in Pennsylvania, it appears that many trials are conducted before a Master, who is a lawyer appointed by the Court to hear matters and make recommendations. In New Jersey, we try cases in front of Superior Court Judges. The only exception is when parties agree to try their matter in arbitration – though that cannot be compelled by a Court in a divorce matter.
Trials are rare. They tell us that about 99% of the cases settle. That said, after the discovery, appraisals, evaluations, depositions, Early Settlement Panel, mandatory economic mediation and in some counties Intensive Settlement Conferences at the courthouse, if the case is not resolved, trial is the last mechanism to get resolution.
Though each judge is different, many have a pre-trial Order requiring the parties to submit several things to the Court in advance to save precious court time at trial for the actual trial. These submissions often include a trial brief wherein you set forth a parties position and the law and facts to support it, witness lists, exhibit lists (both for each party and a joint list), and stipulations. Some judges actually want the actual exhibits in advance too. When we prepare, we typically put our exhibits in binders (4 sets – one for us, one for the judge, one for the other side and one for the witness).
Stipulations are essentially a list of agreed upon facts that you don’t have to spend trial time to establish. While these are helpful, I have had at least one adversary tell me that he wont do them because it interferes with the flow of the presentation. I think that ta ht is a valid point, but nevertheless, I try to enter into stipulations when possible.
When you show up at the courthouse for trial, most judges will want to conference the case to give you one last chance to settle. In fact, some attorneys show up unprepared to actually try the case because they are counting on this. That is bad practice because the best way to be prepared to settle a case is to be prepared to try it because you are bargaining from a position of strength.
Sometimes trial dates are really fake trial dates. What that means is that you are being called to court to try to settle, only you don’t know that in advance. This past Spring, I received a call on the day before the trial telling me to be there at 8:30 the next morning ready to start the trial. Two other sets of attorneys got the same call and a third got the same call, but only to appear at 1:30. None of the four trials on the calendar for that day started. Not all settled either.
When you finally start the trial, sometimes a judge will want you to do an opening statement, or at least ask you if you want to. If there is a trial brief, an opening is not always allowed or required.
Then it is time to call the first witness. The plaintiff, i.e. the person who filed the Complaint for Divorce, gets to present testimony and evidence first. Very often, the plaintiff is the first witness. The lawyer will ask open ended questions on direct examination and the witness will get to tell their story. All appropriate areas for the court’s consideration should be addressed during direct examination. Reference to documents often occurs to assist telling the story.
Similarly, sometimes charts or other summaries are prepared to both assist the Court and shorten the testimony. In fact, as long as the Rules of Evidence are complied with, they are often admitted into evidence as a summary of the testimony subject to cross examination.
Once a witness is done testifying, the other side gets to cross examine the witness. This is done by asking leading questions, where a yes or no answer only is required. A typical questions often begins "Isn’t it true that …"
The plaintiff’s lawyer will then get to re-direct the witness, to clarify issues raised on cross examination. In fact, re-direct is limited to issues raised on cross examination. Sometimes there is re-cross, re-redirect, re-re cross, etc.
The same routine happens will all of the plaintiff’s witnesses.
Sometimes, you call the other party as the first witness in your case. Aside from the element of surprise, if and when I do this, I try to limit it to some real key issues or admissions to get them before the Court right away. Some words of warning, the other side essentially gets to cross-examine their own witness. That can help them if the attorney thinks that they will not testify well on direct. Essentially they can be lead through their entire case, especially since the cross examination of a party witness is not limited to the scope of the direct examination, as it is for non-party witnesses. I recently put my whole client’s case on in this way after my adversary made the mistake to call her during his case. Also, sometimes this can delay the trial because the witness may testify about the same issues first on cross by their attorney and then during direct. Also, if the smoking gun does not turn out to be a smoking gun, the impact on calling the other side first falls flat.
Once the plaintiff’s rests their case, the defendant then gets to put on their witnesses in the same way.
After the defendant is done, the plaintiff may put on a rebuttal case to address issues raised in the defendant’s case.
Note however, because of schedules of experts and other witnesses, it is not uncommon to take a witness out of turn, even during the other side’s case. While you don’t have to agree to this, unless there is a real good reason no to, this courtesy is usually extended.
After the rebuttal cases is over, it is time for Summations. Very often, they are written. This is your chance again to argue the facts that were proved during trial and why the court should grant the relief that your client is requesting. Some judges, require oral summations at the close of the testimony. In fact, one judge before whom I have tried a few cases allows only 20 minute oral summations.
Note also that trials are not usually done on consecutive days until they are done. Trials rarely occur on Fridays because that is when motions are usually heard. They are also not often not held on days when Early Settlement Panels are occurring. There then can be a variety of reasons why a case does not get tried continuously, even within the above parameters. I finished a case in September 2008 where our first trial date was in October 2007, our second in January 2008, our third in April, our fourth in August and our last day in September. While this is not the norm, it is not unheard of either.
After the summations are submitted, you wait for a weeks, if not months to get a decision. I have had one case the finished in July (and started in April) and we did not get the decision until the following May. Another finished about the same time, was not decided until January. In fact, I have two decisions outstanding for trial completed in August and September, respectively.
I note that these rules apply not only to divorce trials, but also to plenary hearings. A plenary hearing is essentially a trial, but usually involves limited issues. They are particularly common post-judgment, when the issue is modification, but arise in other circumstances too.
The process is long and often grueling, but sometimes necessary when parties cannot settle their differences.