Trials in divorce matters are kind of like the Loch Ness monster – lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court’s have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don’t, what is supposed to happen.
 Continue Reading What Happens When the Judge Ignores Trial Stipulations

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. Continue Reading What Happens At Trials