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.