Explanation of Trial


Regarding: Explanation of Trial

Dear XXXX,

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

Trials come in two different varieties: bench and jury. Bench trials are tried in front of a judge. This means the judge acts as trier of law and fact. Jury trials are tried to a jury of, usually, twelve people. In a jury trial, the judge acts as trier of law, and the jury acts as trier of fact. Divorce and child custody trials are bench trials. This is nice because it means there will not be twelve people hearing about the most intimate aspects of your life. Bench trials are inherently difficult, however, because the outcome rests on one person’s judgment. Every trial, whether jury or bench, is a risk, and outcome is never guaranteed.

If this has not happened already, the Court will give us pretrial orders. These will range from telling us what issues we will discuss during the trial to the timeline of events leading up to the trial. For example, the Court will give us dates by which we need to exchange witness lists and proposed exhibits. We will then have a certain number of days to object to those proposed witnesses and exhibits. The Court may also order that we attend mediation or exchange settlement offers. These pretrial orders are designed to get us fully ready for trial well in advance of trial.

At trial there will be live testimony. 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 trial.

To ensure witnesses attend trial, 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. We do not get a second chance at trial.

In addition to live testimony, we will introduce all other evidence (e.g., documents, bank statements, pictures, videos, etc.) at trial. 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 of trial and provided to the other side before trial, otherwise the Court will not accept it. Please, get us everything we may need well in advance of trial.

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

Please be on time for trial. Please dress as best you can for trial. Being on time and dressing well demonstrate respect to the Court, which is important. Again, you only get one chance at trial.

Most trials last one day. Some last longer, even significantly longer, but those are the vast minority of trials.

At the end of trial, the judge or jury will render a verdict. If a judge renders the verdict, he or she may do so immediately after closing arguments, or the judge may take the case under advisement and provide a written decision consisting of findings of fact and conclusions or law and orders. This written decision is usually called a memorandum decision, and it can take one to two months before we receive it from the Court. Once we receive the decision, one side will likely be tasked with writing separate pleadings called Findings of Fact and Conclusions of Law and Decree of Divorce. If those pleadings meet with the judge’s approval, he or she will sign them. It is at that point you will be divorced (sometimes the judge will order the parties divorced at the time of trial) and the case will be over. You will be bound by the Decree of Divorce once the Court signs it.

Hopefully, this letter has helped explain the trial process. You will receive another letter after trial that explains what options are available to you if you believe the judge got it wrong in your case. If you have any questions regarding trial, please call.

/s/ Marco Brown

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