- You are reading this because you have an upcoming court hearing. This is a short letter giving you general instructions on how the court hearing process generally works. I will also give you a separate document with the specifics on how to testify in court. Please read both carefully and let us know if you have any questions. This applies if we have tried to reach an agreement with the other party but have been unable to do so.
- First, prior to the hearing, you and your attorney will go over what will generally be presented and argue for you at the hearing. If we have not contacted you to set up this meeting before the hearing and you would like to have this pre-hearing conference, please contact us and we will arrange it for you.
- Be aware the Court Hearing is an adversarial proceeding. It is not a negotiation, arbitration, mediation, etc., where we all have a friendly conversation. Court hearings are formal proceedings with certain decorum, behavior, rules, and procedures which must be rigorously followed. Think of it as a game of basketball where each side has the ball, shoots, maybe they score, maybe they don’t; but then the other team gets the ball and shoots, etc. The game is carefully watched by Referees who make sure the players follow the rules and if they do not, they incur certain fouls or penalties. The Judge is our Referee but also decides who wins and loses.
- The Hearing/Trial procedure will be generally as follows (this is for a Non-Jury temporary hearing or final trial):
The Court will “call” the case (i.e., convene the hearing). The attorneys generally will stand, announce their presence, and usually ask to “approach the bench” to have a brief discussion with the judge about the disputed issues involved, expected length of hearing, etc. The Judge will let counsel know when the actual hearing will begin, which may be after the judge calls the docket since there are usually several cases set at the same time.
At the appointed start time, counsel will set up at counsel table and have their client (and their spouse, if applicable) seated next to them. To start the hearing, the Judge will swear in you and all the other witnesses by placing them under oath to tell the truth. At the request of either attorney, all non-party witnesses must wait out in the hall and will be ordered not to talk about the case to anyone but the lawyers until they are released. This is called “Invoking the Rule”.
Whomever is Petitioner or Movant (I.e., whomever filed the suit or request for hearing) will proceed putting on his or her case first. For purposes of this overview, let’s assume we are “Petitioner”.
The Court may or may not invite counsel to make Opening Statements and will then direct the Petitioner’s attorney to call his or her first witness.
Your attorney will call you to the witness stand and ask you questions and you will answer them. This is called “Direct Examination.” We will ask you questions which let you describe or state the answer without leading you, if possible. This means we will ask you who, what, why, when, how, etc. You will answer the questions in narrative form but do not go on too long. We tell your side of the case by question and answer, one piece at a time. While questioning you, we also may offer “Exhibits” into evidence, usually documents but sometimes also tangible items or recordings. As we offer an Exhibit into evidence, we will have you identify it, then ask you questions about it to lay the predicate for it being admitted into evidence by the Judge. Usually this means we ask you to authenticate or vouch for the document, describe where it came from, who prepared it, etc. When we offer an Exhibit into evidence, we provide a copy to the other side and allow them to state any objections they may have. The judge will either sustain or overrule their objection. If overruled, the Judge announces the Exhibit is “admitted” into evidence. Once an exhibit is admitted into evidence, the Judge can take it into account in making his decision. If it’s not admitted, the judge cannot do so.
During our questioning of you, the opposing attorney has the right to interrupt either of us by stating an “Objection” to the form of the question or to the way you are answering it. There are many different types of objections. If the other attorney stands and states an objection during your answering of a question, you are to immediately stop talking and wait for the lawyer to state their objection, then for us to respond and for Judge to rule on the objection. Do NOT try to continue to talk over the attorneys or the Judge. The court will then either “Sustain” it, in which case you may NOT finish that answer; or the Court will “Overrule” it, meaning you may finish your answer. Various attorneys have different styles of trying cases- some make many objections, some make very few, but that is a necessary part of the process. Do not worry, as long as you are telling the truth, you will do fine. Read the other Instructional Brochure I am giving you to read for tips on how to testify.
After your attorney has asked you all his or her questions, they will say, “I Pass the Witness”. This means the opposing counsel will then be allowed to ask you questions. This is called “Cross Examination”. Their questions will usually be “leading” questions. Examples would he, “Isn’t is true you have three jobs?” or “You would agree with me that (his/her client) is a good mother, wouldn’t you?”. These type questions are designed to get you to admit certain facts favorable to their side of the case or unfavorable to your side of the case. They are almost always structured to call for a “Yes” or “No” or other very brief answer without allowing further explanation from you at that time. If you try to add things to your answer which are not responding to what was asked of you, you will often hear them object to you being “Nonresponsive” and you will be reminded by the Judge to answer only the questions asked of you. However, if the other side gets you to answer a question only with a “yes” or “no” but you feel there is some explanation needed, don’t worry, your attorney can ask you more questions and let you explain after they have passed you back if your attorney feels it is needed. However, if the other attorney’s cross hasn’t hurt your side of the case, your attorney will not re-question you. Every time your attorney questions you, the other side gets to Cross examine you again.
After you finish testifying, you will be seated back at counsel table with us. We will call out next witnesses, if any, following the same procedure described above for each.
Once we have presented all our witnesses, we will tell the court we “Rest”. The Court will then tell the opposing attorney to present their case in the same fashion as we presented ours. While the other attorney is asking his questions, your attorney can object same as described above. All other of their witnesses will undergo the same questioning process.
Important Tip: Judges watch the party who is NOT testifying to see their reactions. It is very important that you maintain your composure and decorum and make no visible or audible reaction to their testimony.
After Respondent has put on all his evidence, he or she will “Rest”.
Petitioner then has the right to call Rebuttal witnesses, if applicable. This same procedure will apply to all witnesses in all phases of the hearing.
After rebuttal, or if there is no rebuttal, both counsel will announce they “Close”. This concludes the evidentiary presentation.
The Judge may invite or allow counsel to make Closing Arguments. You will remain seated and observe only.
After the judge has heard all the evidence/testimony/considered the Exhibits, and any arguments, etc., he or she will make ruling that is given to all the parties. Usually, it is written but sometimes is announced verbally to the parties in the presence of a court reporter. Also the judge can make a “docket entry” on the court’s docket/record. The ruling is often given after the hearing ends but sometimes the judge will think about it (called “taking it under consideration”) and issue a ruling, which can be days (or weeks) later. We will discuss it privately after we receive it.
Finally, one of the attorneys is responsible for drafting/typing an Order based on the Judge’s Ruling. The other attorney has the right to review how it is worded and sometimes disagreements arise between counsel which the Court later must resolve. Once resolved, the Judge will sign the Order. We will give you a copy showing the date it was signed.
If your hearing was in a large county which has Associate Judges, you have the right to appeal the ruling and have a do-over hearing (called a De Novo Hearing) with the District Judge.
If your hearing was a final trial, once the final judgement has been signed by the Judge, you have certain rights afterward, such as filing post-Judgment motions or an Appeal to the Court of Appeals. You generally only have thirty days to file these. You will discuss those options with your counsel.
