Explanation of Evidentiary Hearing


Regarding: Explanation of Evidentiary Hearing

Dear XXXX,

You have an evidentiary hearing scheduled for XX.XX.XXXX. This is a letter explaining the evidentiary hearing process. This letter is a general explanation of the process and not necessarily specific to your case. If you would like greater explanation regarding evidentiary hearings in your case, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.

Before this, we have argued your case in front of a commissioner. Evidentiary Hearings, however, take place before a judge. Because of this, we will no longer proffer evidence (i.e., have attorneys stand and tell the Court what the evidence is) as we did in front of the commissioner. Instead, the judge will require live testimony and the introduction of evidence according to standard trial procedure. In fact, we think of evidentiary hearings as mini-trials, and we prepare for them as if they were actual trials.

Before the evidentiary hearing, we will exchange witness lists and proposed exhibits with the other side. We will expect them to do the same. This will give us a chance to determine what kind of evidence the other side will introduce at the hearing. Of course, it also means the other side will be able to see our evidence. This type of exchange is standard practice and required by the Court. If we wish to contest a witness or piece of proposed evidence, we will have the chance to do so either before the evidentiary hearing or during it.

As stated above, there will be live testimony at the hearing. The Court will not accept testimony from affidavits and the like. Witnesses must be present and answer questions. Each witness will be subject to direct-examination and cross-examination. Direct-examination is examination by the attorney friendly to the witness. Cross-examination is examination by the attorney hostile to the witness. (It’s actually a little more complicated than that, but you get the idea.) This means if you testify, we will ask you questions, and the other attorney will also ask you questions. We will prepare you for your testimony before the hearing.

To ensure witnesses attend evidentiary hearings, we will need to subpoena them. A subpoena requires a person appear at a certain place and time or provide documents at a certain place and time. If they do not appear, the person subpoenaed is subject to Court- ordered sanctions. Subpoenas are necessary for every witness, even ones who are on our side, because we need to be absolutely sure they will attend.

In addition to live testimony, we will introduce all other evidence (e.g., documents, bank statements, pictures, videos, etc.) at the hearing. This is done by asking questions and laying foundation for the evidence, then asking the Court to accept the evidence and enter it in to the record. All evidence must be provided to us well in advance and provided to the other side before the hearing, otherwise the Court will not accept it. Please, get us everything we may need well in advance of the hearing.

Before the evidentiary hearing begins, each side will give an opening statement and lay out the case to the judge. We are not arguing anything at this point, simply stating what evidence the judge will hear or see during the hearing. At the end of the hearing, after all testimony and evidence have been presented, each side gives a closing argument. This is a recap of what happened at the hearing and argument about what the judge should decide. In other words, this is where we argue how the facts, as presented during the hearing, interact with the law, and what the outcome should be.

Please be on time for your evidentiary hearing. Please dress as best you can. Being on time and dressing well demonstrate respect to the Court, which is important.

Most evidentiary hearings last one-half day to one day. Unless we tell you otherwise, plan on the evidentiary hearing lasting one entire day.

At the end of the hearing, the judge will render a verdict. If a judge renders the verdict, he or she may do so immediately after closing arguments (this is usually what happens), or the judge may take the case under advisement and provide a written decision. This written decision can take anywhere from two weeks to a couple months, so, please, be patient. While judges usually write their decisions as Findings and Orders, some judges will task one of the attorneys to write separate pleadings called (1) Findings of Fact and Conclusions of Law, and (2) Order. If those pleadings meet with the judge’s approval, he or she will sign them. You will be bound by the Order once the Court announces it from the bench or provides a written decision.

Hopefully, this letter has helped explain the evidentiary hearing process. If you have any questions regarding your evidentiary hearing, please call.

/s/ Marco Brown

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