WHAT'S GOING TO HAPPEN IN COURT:
The purpose of this page is to give you a thumbnail
sketch of what you should expect to happen when you actually go to Court. Most
people tell me that they hope and pray they never have to show up in Court. So
if you feel scared, that's alright because most people feel exactly the same
way. In fact, the Court is going to use that fear to try and get you and your
spouse to settle your case without taking up any Court time.
Judicial Officers:
Let's start our trip of discovery
by meeting some of the important people that you are likely to come in contact
with in Court. We'll start with the judicial officers. There are two types of
judicial officers that you will contact in divorce court. There are Judges and
Commissioners.
Judges:
Judges are elected to serve the people that elected
them. They tend to be generalists, in that they preside over either Criminal or
Civil Courtrooms and a mixed calendar of cases.
Court Commissioners:
Most but not all family law
courtrooms are presided over by commissioners. A Commissioner is a
lawyer hired by the County to act as a judicial officer. Instead of being a
generalist, they tend to be specialists in a particular area such as
family law. Since a Commissioner is not elected, the parties must "stipulate" to
a commissioner hearing their case, instead of a judge.
If either party will not
"stipulate" to the commissioner, your case will be transferred to the Master
Calendar court, where it will be sent out to the next available judge. I
have heard both clients and their lawyers say that they are not going to
"stipulate to the commissioner" because they want their case heard
by a "real judge." In my opinion, doing this is wrong because most commissioners
know more about family law than the average judge does.
You need to understand that family
law is the ugly stepchild of the Superior Court. From their lofty perch, family
law is beneath their dignity. After all they were elected to judge "real
cases" and not common divorces. There is a real bias against family
law and you need to be aware of it. The fact that many divorce cases have a
higher dollar value that the so-called "real cases" is irrelevant.
As a result, if you refuse
to "stip" to the commissioner, they are going to view you as a
"trouble maker" and
your case as a nuisance. Either your case is going to trail until they can find
a criminal judge, who knows squat about family law to hear your case.
They
can also send it back to the Commissioner to hear the case as a "referee"
who will make recommendations to the Judge sitting in Master Calendar. Guess
what the Master Calendar judge is going to do with the Commissioner's
recommendations. You're right, the judge is going to adopt them. So you have
accomplished nothing, except for irritating everyone including yourself.
One final very
expensive option is to make you and your attorney wait in Master calendar court
day after day, until a courtroom becomes available, or you come to your senses,
which ever comes first.
Orders to Show Cause and Motions:
The vast majority of cases on
calendar on any particular day will involve what we lawyers call "Pendente
Lite" matters. These are hearing on requests for temporary orders
"pending litigation" or "Pendent Lite." Typically these
requests deal with temporary orders regarding Custody, Visitation, Support and Attorneys Fees.
Since these cases
are pending trial, these cases do not
involve the Court taking testimony. Instead the Court will usually "Rieflerize"
the cases. This refers to deciding the cases based entirely on the
papers, without testimony. While this may sound unfair, and in some cases it is,
this is how the vast majority of the cases will be decided. In fact, many cases
are totally resolved at the OSC and never go to trial, others continue on and
on, OSC after OSC. The parties piling up a mountain of fees and costs.
Morning Calendar Call:
When you first get to Court in the morning, you or your
attorney will check in with the clerk or the bailiff. This way the Court knows
who's here and who is not. When the judge actually takes the bench, they first
thing they do is call the Calendar. It's like a roll call in school. It also
serves another function, it allows the judge to find out which cases are ready
to be heard and how long the parties think the matter will take. Then the judge
will begin the actual hearings taking the continuances, short cause cases,
defaults, and stipulations first.
Trials:
Trials are usually started in the
afternoon sessions or on a "date certain." A date certain is the
real date for a trial to commence and not the trial date in the notice sent out
when you set the case for trial. A trial involves any and all issues between the
parties. Usually the Petitioner proceeds first, because they filed the action in
the beginning.
Testimony and Evidence by the Petitioner:
Trial begins by the Attorney for
the Petitioner calling their first witness, usually the petitioner themselves,
for their "Case in Chief." Obviously this order can change to
accommodate a witness or for a strategic consideration. When the Petitioner's
attorney is finished with the first witness, then it is the Respondent's
attorney's turn to "cross-examine" the witness. Cross-examination is designed to
test the truth of the witnesses story. To see if it holds up. You should think
of "Direct -examination" as the hills of a case and
"Cross-examination" as the
valleys. Taken together, they bring a story to life. This back and force
examination continues until both sides are through with the witness or the judge
gets tired of listening to the witness.
Testimony and Evidence by the Respondent:
After the Petitioner is through presenting their
witnesses and evidence, then it is the Respondent's turn to present their case
in chief. The ebb and flow will be very much the same as with the Petitioner's
case. Then the Petitioner and the Respondent can call any rebuttal witnesses
that they think will help make their case.
Final Arguments:
After the testimony and
documentary evidence has been presented, each side get to argue how the
judge should interpret the evidence. Some judges want written final arguments.
When that happens, the Petitioner must have their arguments in within a
certain date and the Respondent must file their arguments a few weeks later.
Sometimes rebuttal written arguments are filed. When everyone is finished, the
case is submitted and the Court makes a decision. The judgment is prepared,
signed and filed the case is over, or is it? Only time will tell.
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