Video #60 – Going to Trial

Video Transcript

Welcome to 

Christina:  This is Christina.

Ed:  This is Ed.  Today we are going to talk about going to trial.

Christina:  Do the various counties have different local rules and procedures when comes to going to trial?

Ed:  Yes.  First, I want to point out that very few cases actually go to trial.  Many cases that are set for trial, settle a day or two before trial or in the morning on the day of trial.  However, if you have a trial date, you can’t assume your case will settle.  You need to be ready to put on your case at the start of the trial.  Again, there are 58 counties in California, all with different local rules.  The rules about what documents you need to submit to the court before the trial are going to vary from county to county.  The manner in which the trial is conducted is also going to vary from county to county. In this video, we are going to describe common procedures, but if your case is going to go to trial, you should read the local rules for your county regarding trials in family law cases.  You also may want to consider meeting with a local family law attorney and pay for an hour of his or her time to get a basic description of pre-trial and trial procedures for your particular county.

Christina:  You mentioned documents I may need to file with the court before the trial starts.  What documents are you talking about?

Ed:  If your case does not settle at the settlement conference, there is a good chance at the time the court assigns a trial date, the court will give you written instructions setting forth the court’s rules describing what documents you need to file with the court and serve on the other side before the trial begins.  These instructions are commonly called “Pre-Trial Orders” or “Pre-Trial Instructions”.

Christina:  Will the requirements for pre-trial documents include an exchange of Final Declarations of Disclosure?

Ed: If you have not already done so, prior to the trial date, you will need to serve your spouse with your “Final Declaration of Disclosure” documents.  Again, these documents consist of the FL-140 Declaration of Disclosure; the FL-141 Declaration Regarding Service; the FL-142 Schedule of Assets and Debts; and the FL-150 Income and Expense Declaration.  You will need to serve your spouse with your Final Declaration of Disclosure documents not later than 45 days before the trial date.  Remember, everyone has to do a Preliminary Declaration of Disclosure near the beginning of the divorce and, unless mutually waived, both parties have to prepare and exchange a “Final Declaration of Disclosure” just prior to entering into a settlement agreement or 45 days before trial.

Christina:  After I have completed my Final Declaration of Disclosure and served my spouse with a copy, what do I do?

Ed:  After you have completed your Final Declaration of Disclosure, file your Income and Expense Declaration with the court.  Make sure your FL-150 is “current”, meaning it is dated not more than 90 days before the start of the trial.

Christina:  Will I also have to file a trial brief?

Ed:  You will almost certainly be required to file a “trial brief” with the court and serve a copy on your spouse a certain number of days before trial.  Typically, trial briefs are due 2 weeks before trial. 

Christina:  What is a trial brief?

Ed:  Your trial brief will be similar to your Settlement Conference Statement.  It goes on a 28-line pleading paper, with a caption, and explains to the court what issues have been resolved by agreement, what issues remain in dispute, and what your position is with respect to each issue.  Different counties will have different local rules for what is required to be included in a trial brief.  If you used our Settlement Conference Statement template, you can probably just update your Settlement Conference Statement and then change the title of the document from “Settlement Conference Statement” to “Trial Brief”.

Christina:  What about documents that I will want to show the judge during the trial – what do I do with those before the trial starts?

Ed:  You will likely be required to lodge with the court and serve your spouse with a “trial binder” containing all documents that you intend to offer into evidence during the trial.  These documents will be trial “Exhibitions”.  Trial binders typically contain an introductory page listing all of the exhibits that are contained in the binder.  Exhibits should be pre-marked.  Petitioner uses numbers to mark exhibits and Respondent uses letters to mark exhibits.  You can usually purchase colored exhibit stickers from office supply stores or from Amazon.  You can peel and stick them onto your exhibits and then take a pen and fill in the number or the letter of the exhibit.  Some exhibit stickers are just for family law cases and will say “Petitioner” or “Respondent” on the stickers.  Go to Amazon and look at the  “Blumberg Exhibits” where you can purchase “Petitioner” and “Respondent” exhibit stickers.  Your Pre-Trial Order or Pre-Trial Instructions should tell you how many days before trial you will need to lodge your exhibit binder with the court.

Christina:  What is a witness list?

Ed:  You will likely be required to file with the court and serve on your spouse a certain number of days before trial a witness list.  A witness list is typically on 28-line pleading paper with a caption, in which you identify all witnesses you intend to have testified during the trial and includes a very brief description of the general content of their anticipated testimony.  If you intend to have expert witnesses testify at trial, you will identify those expert witnesses on your witness list.  In addition, if the expert has issued a written report, the court may require you to provide a copy of the report to your spouse a certain number of days before trial.

Christina:  Will the court require both parties to attempt to settle the case shortly before the trial date?

Ed:  Most courts will require you and your spouse to “meet and confer” a certain number of days prior to trial and attempt to reach a settlement.  If you can’t reach a settlement, then the court will expect you and your spouse to attempt to reach agreements regarding stipulated facts and the admissibility of documents for purposes of the trial.

Christina:  When I go to court on the day of the trial, what can I expect?

Ed:  The trial will be in front of a judge, not in front of a jury.  When you put on evidence during a trial, there are very complicated rules of evidence.  A description of the rules of evidence is beyond the scope of this video.  You can take comfort in the fact that a large percentage of lawyers don’t understand even the basic rules of evidence.  In addition, when the two parties to a divorce are both in pro per, there is a tendency for the court to overlook most of the rules of evidence because neither party understands how to make a proper objection.

Christina:  Who starts to put on evidence?

Ed: If you are the Petitioner, you go first.  If you wish, you can make a brief “Opening Statement” where you briefly summarize for the court what the disputed issues are and what evidence you will be presenting.  You do not have to make an opening statement.  If you elect to make an opening statement, keep it brief.  The court will give your spouse an opportunity to make an opening statement.

Christina:  How do I put on evidence?

Ed:  Since you do not have a lawyer, your testimony will not be given by means of a question and answer format with you on the witness stand, which is what takes place during trials as seen on television.  Instead, the court clerk will have you take an oath, to tell the truth.  Then, you will simply tell the judge what you want the judge to know.

Christina:  How do I prepare my testimony?

Ed:  Many people that are in proper will just type up a script or at least an outline of what facts they want the judge to known before the judge decides the case.  Weeks before the trial begins, you should start working on a script of what you are going to say at the trial.  Start with an outline.  List all of the disputed issues.  Consider each issue.  Then, type up every fact you want the judge to know about that issue.  Think about what documents you want to show the judge when it comes to each issue.  When it is your turn to put on your case, read from your script or recite from your outline.  People get nervous at trials and sometimes forget what they want to say.  So, it’s better to have something you can read from or at least an outline.  Practice what you intend to say before the start of the trial.  You will certainly be nervous at the start of the trial, but after it begins, most people quickly settle down and find it easy to engage in a discussion with the judge about the disputed issues.

Christina:  What do I do with the documents that I want to show the judge that is in my trial exhibit binder?

Ed:  When you present your case, you will want to introduce documents into evidence.  When you are presenting your case, tell the judge that you want the judge to look at a particular exhibit.  You should have prepared, before trial, an exhibit binder for yourself, with a copy of the binder for the judge, and a copy for your spouse.  The binders should be identical. Tell the judge to open your exhibit binder and turn to the exhibit you want to talk about.  Tell the judge the exhibit letter or number. Then, tell the judge what you want the judge to note about the document.  For example, tell the judge what part of the document you want the judge to look at or read.  Then, say, “I offer this exhibit into evidence”.  The judge will either accept the document into evidence or exclude it from evidence.  Chances are that your spouse will not know how to make a valid objection and the document will go into evidence.

Christina:  At the start of my case, do I need to put on any evidence to show that the court has jurisdiction to grant the divorce?

Ed:  Yes.  At the beginning of your case, you will need to put on testimony to establish that the court has jurisdiction to grant the divorce.  This is simple to do.  Just say the following:  You were a resident of California for at least six months before you filed the Petition for Dissolution of Marriage.  You were a resident of your county for at least 3 months before you filed the Petition.  You and your spouse have experienced irreconcilable differences that have caused an irremediable breakdown of your marriage and the marriage cannot be saved by counseling or other means. 

Those simple statements are sufficient to establish the grounds the court will need to grant the divorce and terminate your marital status.

Christina:  What do I do after I give my testimony to the judge?

Ed:  After you have testified, meaning recited your prepared testimony statement to the judge, you will have an opportunity to call any witnesses you want to present.  If you have any witnesses, they will go to the witness stand and take an oath.  You will then ask them questions.  Your questions and their answers will be evidence the judge will consider.

Christina:  Should I call my spouse as a witness?

Ed:  One witness you probably should call will be your spouse.  After you give your testimony, the judge will ask you if you have any witnesses.  Tell the judge you wish to ask your spouse questions.  Since your spouse is an “adverse witness”, you can ask your spouse “leading questions”.  A leading question is not really a question, but more of a statement.  You can ask leading questions by using the following opening words, “Isn’t it correct that ….” For example:

  1. Isn’t correct that you have been cohabiting with your boyfriend for the past six months?
  2. Isn’t it correct that you elect to work part-time even though your employer recently offered you full-time employment?
  3. Isn’t correct that you smoke marijuana several times per week, including when the children are in your physical custody?

Make a list of statements that will help your case and then put each of those statements in the form of a leading question.  When it is your turn to question your spouse, pull out your list and ask each leading question.  Don’t wait for your spouse to present on his or her case.  Right after you present your testimony, tell the judge that you have questions to ask your spouse as part of you presenting your case.

Christina:  What happens after I have presented my case?

Ed:  After you have presented your case, your spouse will have an opportunity to present his or her case, including calling any witnesses, and questioning you.

After both sides have presented their cases to the judge, the judge may or may not give both of you an opportunity to make a closing argument.  After that, the case is submitted for the judge to decide. 

Christina:  In the next video, we will talk about what to do after the judge decides all of the disputed issues.


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