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The Divorce Encyclopedia
Bench Trial


Term Definition Bench Trial - a trial before a judge, without a jury; generally the only trial available in a court of equity.
Application in Divorce Only two states, Texas and Georgia, grant the right of a jury trial in divorce actions, so the overwhelming number of divorce trials are bench trials.

Once the discovery process is complete, each lawyer uses legal precedent to construct an argument about what his or her client is entitled to. Then a trial takes place, during which the lawyers present the judge, master, referee, or other person hearing the case with information favorable to their arguments. This information is presented in the form of witness testimony focusing on whatever the lawyers decide is important. This is called putting on a case.

The trial may not take place for a year or more after a divorce case is filed in court. Before the trial, numerous shorter court proceedings, called hearings, may take place. The purpose of these hearings is to resolve emergency issues -- such as where the children will live -- pending the results of the trial. Hearings may also be held to address legal issues that arise during the course of trial preparation. For example, suppose the plaintiff’s lawyer has sent the other side thirty questions to answer under oath, but the questions have been ignored because the opposing party claims that the questions are improper. If requested, the court may hold a hearing to determine whether the other side should be compelled to answer the questions.

The trial itself proceeds in front of a judge, master, magistrate, or other hearing officer and begins with each lawyer making an opening statement regarding what he or she intends to prove. Usually the lawyer for the person who filed for the divorce makes the first opening statement. A party should be prepared for the opening statement by the opposition lawyer to include disparaging, insulting, and untrue statements about honesty, moral character, earning capacity, income, assets, and fitness as a parent.

After the opening statements, each side presents his or her case, with the party who initiated the lawsuit (the petitioner or plaintiff) going first. Each lawyer calls witnesses to the stand and asks them questions. This is called direct examination. The lawyer presenting a witness is not permitted to ask leading questions such as, "On December tenth, did your wife threaten you with a gun?" Rather, the lawyer must ask, "What, if anything unusual, happened on December tenth?"

Once one lawyer presenting a particular witness has finished direct examination, the other lawyer is permitted to cross-examine that witness. In contrast to direct examination, cross-examination may include leading questions such as, "Isn’t it a fact that, as a teenager, you used cocaine?" The other side’s lawyer may a number of questions that have absolutely no basis in fact. If this happens, a party’s lawyer should object. But even if the lawyer does not object, any outbursts are inappropriate. A party makes a better impression on the judge by staying in control.

The lawyer may be permitted to ask additional questions of his or her client or any witness who has just been cross-examined. This is called redirect. The other lawyer may then cross-examine that witness on the subject of the redirect testimony; this is called recross. Once the plaintiff’s or petitioner’s lawyer finishes presenting his or her witnesses and the cross-examination, redirect, and recross have been completed for each witness, then the other side presents its case and the initiating side gets to cross-examine those witnesses. Redirect and recross may once again follow.

Sometimes witnesses are taken out of sequence because of scheduling problems. This is especially likely to happen if doctors are involved (due to demanding work schedules) and may sometimes be unavoidable, but a lawyer should not allow his or her presentation of evidence to be continually interrupted by witnesses taken out of turn by the other side. A lawyer should focus on telling his or her client’s story in a logical and compelling way through the use of witnesses. As with any story, a case is not as powerful or convincing if it is plagued by repeated interruptions.

Once each side has presented its case, the side that went first may present more testimony to rebut any new issues that were raised by the side that went second. This is called rebuttal. Then the opposing party may also present additional testimony to rebut any new issues raised during rebuttal; this is called sur-rebuttal. And each side may, of course, cross-examine the other’s witnesses.

Once this process is complete, the lawyers make their closing arguments, which are often blistering and unfair personal attacks on the opposing party. In this phase of a trial, the lawyers mischaracterize or misstate what various witnesses have said on the stand. Many lawyers believe that, if they can get away with it, they have a duty to their clients to try these courtroom tactics. It is hard to say whether it is worse to be represented by a lawyer who aggressively twists the truth or to not have such a lawyer. In any event, a party must sit mute while the other lawyer drones on with unfair innuendos. This is certain to be one of the most painful and humiliating experiences a person will ever endure. And these tactics often escalate when the other retaliates in an effort to correct any misimpressions.

Also called the Chancery Court.

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