Hearing and Trial Preparation

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Hearing and Trial Preparation

• Presented by
• The Alaska Court Systems Family Law Self-Help
  Services

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Welcome

• We provide legal information, not legal advice.
  What this means is that we give you information
  on court forms and procedures, but not advice on
  strategy or interpretation of the law.
• Only an attorney representing you can provide
  advice on strategy or interpret laws affecting
  your case.
• Communications during this class are not
  confidential.
• We provide services to both sides in a case, so
  that means we will give the same kind of help
  were giving you to the other side.

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Class Summary

1. Required Papers
2. What Happens
3. Evidence Witnesses
4. Evidence Exhibits
5. Rules of Evidence Objections

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How will I know when to be in court and what I
have to prepare?

• You will get an Order from the Court.
• Scheduling Order (trial)
• Notice of Hearing (hearings)
• Read this document carefully. It is very
  important.
• It will tell you when you need to be in court and
  what you must file before the hearing or trial.
• If you do not obey the Order, you could receive
  sanctions. These might include not being allowed
  to call your witnesses.

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What are some of the documents that will be
required?

• Witness List
• Exhibit List
• Pre-Hearing or Trial Brief
• Property Division Worksheet
• Parenting Plan Best Interests Affidavit
• Child Support Affidavit
• Other, as required by your scheduling order

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What happens at a hearing or trial?

• Judge introduces case
• Moving party or plaintiff goes first
• Opening statement
• Direct questions first witness
• Cross-examine other side asks witness questions
• Re-direct to fix cross-exam
• Repeat cycle until all witnesses for this side
  are done
• Responding party or defendant goes next
• Repeating the above cycle
• Rebuttal witnesses (if needed)
• Closing statement
• Judges decision (then or later)

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What do I say in my opening closing statements?

• The purpose is to give the Judge a road map.
• Opening
• What you want.
• Why you want it.
• How you are going to make your case?
• Summarize your evidence.
• Explain how this evidence supports your case.
• Closing
• All of the above PLUS whats wrong with the other
  sides position.

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How does direct testimony work?

• Ask your witness open-ended questions and have
  them tell a story
• Tell me what happened on August 15
• Please tell the Court about my sons special
  needs
• How do you think these are best met?
• When its your turn, tell an organized story
• Prepare your comments make an outline
• Tell the Judge where youre going. For example,
  now Im going to talk about the parenting plan
  Ive proposed and why I think its in our
  childrens best interests.

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How does cross-examination work?

• The other side gets to ask leading questions.
• Usually yes or no questions
• With a spin that makes you look bad
• Examples include
• Isnt is true that you see my son crying every
  time you go to my exs house?
• Isnt it true that you sold some of our marital
  property without my permission?
• Listen carefully make notes. You can fix this
  on re-direct. Yes, but.

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How does re-direct work?

• This is your opportunity to fix the cross-exam.
• Give your witness the chance to explain.
• Please tell the Court what you have observed
  about my sons crying?
• He starts crying uncontrollably when I come over
  to drive him to visitation. For the first half of
  the drive he is sobbing, but by the time we get
  to the drop-off, he is totally silent and will
  not speak. He will not get out of the car by
  himself.
• After youve been cross-examined, you should have
  a turn to explain to the court how the
  cross-examine might have been misleading and what
  more there is to the story.

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What is a rebuttal witness?

• Someone who is not on the witness list.
• This persons testimony is suddenly needed to
  rebut something unexpected that another witness
  said.
• For example
• Your ex testifies that your child is sick so
  often because you will not do what the doctor
  says.
• You call the Doctor as a rebuttal witness to
  explain how well you care for your child, who has
  numerous medical conditions that result in
  frequent illnesses.

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What is the difference between giving testimony
and asking questions?

• Testimony is the story told by a witness.
• Asking questions gets a witness to tell a story.
• This can be a difficult but important
  distinction.
• Your direct exam is testimony.
• When it is your turn to cross-examine, you should
  ask the witness questions, rather than give
  rebuttal testimony.

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Review The order of things at a hearing or trial.

• Judge introduces case
• Moving party or plaintiff goes first
• Opening statement
• Direct questions first witness
• Cross-examine other side asks witness questions
• Re-direct to fix cross-exam
• Repeat cycle until all witnesses for this side
  are done
• Responding party or defendant goes next
• Repeating the above cycle
• Rebuttal witnesses (if needed)
• Closing statement
• Judges decision (then or later)

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What does the Court consider evidence?

• People witness testimony
• You
• Other people who have direct and relevant
  knowledge
• People who keep records (see below)
• Things exhibits
• Photographs
• Records police, medical, bills, appraisals,
  school records etc.
• Other as relevant

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How do I choose my witnesses?

• Carefully.
• Find out how much time you will have.
• Figure out why you want to call a particular
  witness.
• What will they say?
• Will they really help your case?
• Why is their testimony relevant?
• Prepare an Offer of Proof for each witness.
• You do not want any surprises!

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What is an offer of proof?

• Sometimes, before you call a witness, the Judge
  will want to know why you are going to call that
  person so that she can decide whether the
  testimony is necessary and relevant.
• An Offer of Proof is a short statement from you
  telling the Judge
• why you want a witness to testify
• what that witness is expected to say
• and why this is relevant and necessary to the
  case
• To help you organize your thoughts, we have forms
  that you can use to prepare an Offer of Proof for
  each witness and exhibit.

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How do I prepare my witnesses?

• It is not cheating to prepare.
• Write-out your questions.
• Practice the questions with your witness.
• Be prepared for cross-examination talk with your
  witness about what questions the other side might
  ask them.
• Prepare an Offer of Proof to help you focus their
  testimony.
• Remind your witness that they must tell the
  truth.
• They are not allowed to make up stuff.
• It is ok to say, I dont know or I dont
  remember
• Witness Exclusion Rule

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What if a key witness says they wont come to
Court?

• You may subpoena them.
• A subpoena is a Court Order requiring a witness
  to come to court.
• The Court has forms for subpoenas
• to appear
• to appear and produce
• for taking a deposition
• Please see the detailed instruction sheet, Form
  CIV-109, for more information.

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Focus on Exhibits

• Think about what kinds of exhibits might be
  useful proof for specific issues
• Financial
• bank statements credit card statements house
  appraisal or brokers opinion (not tax
  appraisal) Kelley Blue Book printouts for
  vehicle value loan documents
• Custody Visitation
• school reports counselors report medical
  reports

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Preparing Exhibits

• Once you have selected what photographs, bills,
  school reports, etc. that you want to use in
  court, you must prepare them.
• Write-up an Offer of Proof
• Mark with the stickers
• Copy
• Exchange
• Follow step-by-step instructions.
• NOTE Be mindful of confidential info. If
  admitted, these are public documents unless made
  confidential. You can black out account social
  security numbers and ask court to make custody
  related documents confidential.

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How do I introduce an exhibit?

• Exhibits cannot testify for themselves, so
  somebody has to introduce them.
• The person introducing the exhibit has to know
  about it, be able to identify it and confirm that
  it is authentic.
• You could introduce a letter written by the
  defendant to you.
• You could introduce a photograph of your house,
  but you could not introduce a photograph of your
  exs new house in Florida that youve never seen.
• The exhibit must satisfy all the rules of
  evidence before it is admitted.
• This is a very complicated area, but there are
  recognized techniques. If you think a particular
  exhibit is critical, you should consult with an
  attorney.

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What about objections?

• You have the right to tell the Court that you
  think the other side is somehow violating the
  Rules of Evidence.
• As soon as you hear something (usually a question
  but it could be an exhibit) that you think
  violates the rules, say I object!
• The Judge may ask you why, or may simply decide
  by saying either Sustained (which means the
  Judge agrees with you and the other side must
  stop that question the witness shouldnt
  answer) or Overruled (which means the other
  side can continue).

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What are these Rules of Evidence?

• They control what is allowed to be considered by
  the Court. Their purpose is to get the most
  reliable, relevant and accurate evidence to the
  Judge.
• The most important rules are
• People can only talk about what they know first
  hand.
• You have the right to cross-examine anyone whose
  words (whether written or spoken) are being
  considered.
• The testimony must be relevant.
• Leading questions cannot be asked on direct exam.
• You can object when you think one of these rules
  is being broken.
• The rules are on-line at http//www.state.ak.us/co
  urts/ev.htm
• or at your local library, court or Legislative
  Information Office.

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Will the Judge object for me?

• No.
• The Judge is not like a referee, who calls a foul
  when he sees one.
• You need to call the fouls as you see them, by
  saying, I object!
• The Judge will then rule on whether that really
  was a foul.
• Remember this is an adversarial process and you
  must speak up for yourself.

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More about the Judge

• The Judge must appear neutral and impartial, and
  therefore intentionally has no expression when
  listening to testimony.
• One sided -- or ex parte -- communications are
  forbidden.
• You cannot call the judge to talk about the case.
• Both sides must be present for any communications
  you have with the judge.
• You must show the other side any papers you give
  the judge.

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Whats the best way to prepare for hearing or
trial?

• Go watch a hearing or trial.
• Prepare your exhibits.
• Dont miss any deadlines.
• Plan your case keep your eye on the ball.
• Write out your plan.
• Write out what you your witnesses are going to
  say.
• Use the forms we give you.
• Practice.

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What Happens After the Hearing or Trial is Over?

• The Judge will make a decision
• From the bench
• Take under advisement
• Ask the Judge who will write up the final order.
• You have 5 days to object to any errors in a
  proposed order use form CivR 78 Objections,
  SHC-1635.
• If the other side fails to file the final order,
  write it up yourself and file with a Notice of
  Filing, SHC-1605.
• Before you leave the courtroom, be sure you
  understand what happens next.
• Keep your address and phone number current with
  the court.

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Accessing Court On-Line Information

• To View Your Case On-Line
• www.courtrecords.alaska.gov/
• Click on Court View
• Enter case Number or Name and click Search
• Events for hearing information
• Dockets for papers filed
• To View Court Calendars On-Line
• www.state.ak.us/courts/trialcts.htmcal
• Click on Superior Court

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Final Review Other Resources

• Guidelines for Courtroom Behavior
• Other Resources
• A private attorney
• Word of mouth
• Yellow pages
• Lawyer Referral Line
• [phone] or [phone]
• The Family Law Help Line
• [phone] or [phone]
• www.state.ak.us/courts/selfhelp.htm
• The internet, your local bookstore or law library