“Okay, we can’t agree so let’s go to trial.” These are scary words to hear, and can be anxiety-inducing words to say, but what a family law trial entails may be outside your sphere of knowledge outside of what you might see on TV. Real-life trials go somewhat differently than how you see on TV, and my goal is to leave you with some knowledge to keep in mind when deciding to go to trial and preparing for trial.
The majority of family law matters settle before they get to trial, but trial is necessary in a small percentage of cases. Matters settle for a wide variety of reasons, but two of the main ones are:
- 1) the agreement you land on is something you can live with, and the risk of trial is too great.
- 2) the cost of going to trial outweighs the benefit of what you might receive in the trial.
Trials take a lot of time, effort, and money, even if you don’t have an attorney. Engaging an attorney to represent you can cost tens of thousands of dollars, sometimes hundreds of thousands of dollars. Trials typically involve digging up numerous documents and any negative thing you can find on the other party, and sometimes involve getting evaluated by experts. Trials are very invasive and time-consuming, so people sometimes lose their jobs when dealing with one. Trials leave people emotionally and physically drained, and more times than not both parties don’t like the judge’s decision. Again, in some cases trial is necessary, but I always caution people to get ready for the toll a trial takes on a person going through one.
The information below is Clark County, Washington specific, so please consult with an attorney in your jurisdiction before following the information below.
Once a decision has been made to go to trial, a party files a Notice to Set for Trial. However, here in Clark County parties going through a divorce are required to attend a Settlement Conference first before proceeding with trial. All other family law matters proceed straight to trial unless the parties agree to attend a Settlement Conference first. At the point a trial date is requested, you should start looking at doing the things below. Your trial date could be set a month out or eight months out depending on the schedule and the length of trial you are requesting, so I always recommend people start preparing sooner rather than later. At the very least, I recommend people start on the items below at least two months out from trial.
When preparing for trial, the things you need to be working on are as follows:
1. Witness List
You are allowed to have witnesses testify at trial on your behalf. These can be lay witnesses (parents, friends, neighbors, etc.) or expert witnesses (counselor, real estate agent, guardian ad litem, etc.). Before trial, you need to put together a witness list, including names, phone numbers, addresses, and a brief description of who they are and what they will testify to, and be prepared to give it to the other party at your Trial Readiness hearing (explained in more detail below). I typically recommend you have no more than five lay witnesses, including yourself, unless there are special circumstances.
If you have witnesses testifying on your behalf at trial, you need to make sure they are issued a subpoena to appear. However, if you are representing yourself you need a judge to sign the subpoenas on your behalf. Once you put together the final witness list, you need to put together a Motion for Order for Issuance of Subpoenas, Order for Issuance of Subpoenas, and the subpoenas themselves. Unfortunately, there is not a form motion or order available at the courthouse to use for this, but you can get the blank motion and orders from online and put together your own pleadings. I recommend you file these pleadings (and serve on the other party) two weeks before the Trial Readiness hearing, so the Motion for Order for Issuance of Subpoenas can be heard at the same time as the Trial Readiness hearing. At the hearing, the Judge will decide who will get to testify, and sign the appropriate subpoenas. For every subpoena the Judge signs, there is a fee associated, so make sure you budget enough funds for this. I recommend notifying your witnesses ahead of time that they will be testifying. People tend to get somewhat upset if you wait to tell them until you serve them with a subpoena.
3. Witness Questions
Once the final witness list and subpoenas are complete, you will need to start preparing the questions you would like to ask them. You need to make sure you add foundation questions (i.e. questions establishing who the person is and why they know the information you are able to ask them about). You are not limited to the questions you come up with before trial. The flow of information is always changing in the trial itself, so you are welcome to ask additional questions, fewer questions, or change the questions you prepared. No one is going to see your questions except for you. You are welcome to talk to your witnesses about the topics you are going to ask about, but you cannot coach them on their answers.
4. Trial Exhibit Binders
As mentioned previously, you will need to gather numerous documents to present at trial. Any and all documents you think might be relevant should be considered as a trial exhibit. There are rules regarding documents entered at trial, which I will explain in more detail below. The documents you choose as exhibits should be placed in a 3-ring binder and numbered. You also need to put together an exhibit index for easy reference. Once you have organized the exhibits and exhibit index, you need to make three additional sets and place them in their own labeled 3-ring binders. You will need at least four trial exhibit binders for your trial: 1) one for you, 2) one for the other party, 3) one for the Clerk’s Office, and 4) one for the Judge. You should aim to have these completed at least one week before trial.
If the exhibits are gathered and indexed at least 30 days before trial, they could be entered as ER 904 Exhibits. These are exhibits that are given to the other party at least 30 days before trial, and if they don’t object within 14 days of receiving them, then the exhibits are deemed admissible without having to officially enter them at trial. You do not need to file the exhibits, but you do need to file a Notice (see below for accompanying rule). Only certain documents are able to be submitted as ER 904 Exhibits, so I recommend you take a look at the court rule prior to submitting them. Even if exhibits don’t qualify under the rule to be ER 904 Exhibits or the other party objects to them, you can still try to enter them in the trial itself.
5. Personal Testimony
You will be testifying at trial so you will need to put together an outline of what you will be saying. I recommend starting this process by putting together a narrative of what happened since you and the other party met up to the present day. Once the narrative is complete, you need to go through and cut the information down to an outline you can easily reference when you are on the witness stand. Again, you will be able to reference it, but you will not be able to read from it.
6. Trial Memorandum
The Trial Memorandum is the document the Judge is going to see prior to your trial. This is the document that will describe a brief history of the case, the issues the Judge needs to decide, the applicable case law, and your requests for the Judge in this matter. There isn’t a form for this document, so I highly recommend you spend the time and money to consult with an attorney prior to submitting your Trial Memorandum to the Judge. You should ask the Judge at the Trial Readiness hearing when they would like the Trial Memorandum filed and served on the other party by, but you should aim to have it completed at least a week before trial.
7. Trial Readiness Hearing
Your Trial Readiness hearing typically takes place a month before trial is set to take place. At this hearing, the Judge will ask if you are ready to proceed, and if you have any witnesses. You should give the Judge your witness list, as well as request that he sign the subpoenas for those witnesses (you need fresh copies with you at that time and ready to sign). You will need to ask the Judge when he would like you to submit the Trial Exhibit Binder to the Clerk’s Office and file the Trial Memorandum. The Judge usually wants these documents submitted/filed and served on the other party between one week and three days before trial.
8. Potential Settlement
Even if a trial has been set, you can still attempt to settle your family law matter at any point prior to the trial. It is even possible to settle at the trial, so long as it takes place before the Judge makes their ruling. If you do not think settlement is a possibility, or you do not agree with the other party’s proposal, there is no requirement that you reach an agreement.
9. Rules of Evidence
Trial is governed by the Rules of Evidence, and you can take a look at these here. You should be looking at these ahead of when the trial is set to take place, and try to have some familiarity with the rules. People representing themselves are held to the same standard as attorneys, and you don’t want to annoy the Judge or not get some information or document in front of the Judge because you don’t know the rules. Take a look at my other blog titled “Attending a Family Law Trial – Is it like the movies?” to find out more information on how to use the Rules of Evidence and what you need to do while attending trial if you are still unsure of what to do.
Thinking about and preparing for trial can be stressful and scary. The points above do not encompass everything an attorney might do to prepare for trial, but they are the things you should do to follow court procedures and get the information you want the Judge to consider in front of them. Going through a trial is very different from anything else that happens in a family law matter, so I recommend you contact my office to set up a meeting if you have questions.
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.