Divorce Hearings and Trial
Once the discovery process is complete, each lawyer will use legal precedent to construct an argument about what his or her client is entitled to. Then a trial will take place, during which the lawyers will present the judge, master, referee, or other person hearing the case with information favorable to their argument. This information is presented in the form of witness testimony focusing on whatever the lawyers decide to focus on. 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 will also be held to address legal issues that arise during the course of trial preparation. For example, suppose your lawyer has sent the other side thirty questions to answer under oath, but the questions have been ignored because the other side claims that the questions are improper. If your lawyer requests it, the court may hold a hearing to determine whether the other side should be compelled to answer the questions.
The trial itself will proceed in front of a judge, master, magistrate, or other hearing officer and will begin 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. Be prepared for the opening statement by your spouse’s lawyer to include disparaging, insulting, and untrue statements about things such as your honesty, moral character, earning capacity, income, assets, and fitness as a parent.
After the opening statements, each side will present his or her case, with the party who initiated the lawsuit (the petitioner or plaintiff) going first. Each lawyer will call witnesses to the stand and ask 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?"
Because your own lawyer is not allowed to ask you leading questions while you are on the witness stand, you may find it difficult to figure out how to answer. If your lawyer asks, "What, if anything, occurred?" or something similarly vague, you may not know what he or she is driving at and get flustered. This is why it is valuable to meet with your lawyer before the trial and go over your testimony. If you believe you will need notes and further preparation to help you remember dates or other information, discuss this with your lawyer.
Once the 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 ask you a number of questions like this-questions that have absolutely no basis in fact-just to make the judge think that you might have done such things. If this happens, your lawyer should put a stop to it by objecting. But even if your lawyer does not object, try to stay cool and calm. You will make a better impression on the judge if you do not lose your temper or become abusive.
Your lawyer may be permitted to ask additional questions of you or another 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 to allow for 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. Your lawyer should focus on telling your side of the story in a logical and compelling way through the use of witnesses chosen because of what they know and how well they can communicate this information to the judge. As with any story, your case will not be 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 surrebuttal. And each side may, of course, cross-examine the other’s witnesses. Once this process is complete, the lawyers make their closing arguments, which usually consist of blistering and unfair personal attacks on the opposing party. Do not be surprised if 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 on your side. In any event, during closing arguments, you must sit mute while the other lawyer drones on with unfair innuendos about you. This is certain to be one of the most painful and humiliating experiences you will ever endure. Then it’s up to your lawyer to go back and correct any misimpressions the other lawyer left with the judge.
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COURSE OF LAST RESORT-- A divorce trial should be a course of last resort because it is here spouses make war on one another, and when it is over, they will leave the battlefield with lasting hatred of one another.
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