A Look at How Family Court Works
Family Courts have adopted a "case flow management" system, with the goal of getting cases resolved more promptly to help reduce the backlog of family cases pending in the court system. While case flow management systems may differ from one court to another, in essence, from the moment a case is commenced through the time that it is ready for trial, there are pre-trial conferences, discovery, motions, hearings and settlement conferences with the goal of getting the case to the final trial in the shortest amount of time.
Cases may sometimes be ready for trial relatively quickly after commencement. In addition, some courts may still be using the older case management system which permits lengthy discovery and motions before a case is ripe for trial. There can be many pretrial hearings and pretrial activities , so the entire pretrial process can last for months or years. On the other hand, there are also timeframes for trial being pushed up from pretrial stages, so even the party who may not have been ready for trial may have a trial sooner than they anticipated.
It is critical to move your case forward expeditiously. If you put off your trial readiness just to keep settling in hope of a better result, you run the risk of having the case preempted and having a trial that you are not ready for. The unlucky person to be assigned the case that is trial ready could be forced into trial sooner than they want, and the unlucky party who delays could find that they are truly out of luck.
Evidence Collection and Preparation
In cases where you have family trials, such as those involving child custody matters, or an equitable distribution of property and debt, evidence must be gathered and organized to support your claims. Cases are decided on evidence before the court. Attorneys have to prepare cases for clients and are prepared to present evidence in ways that demonstrates an understanding of the law, and understanding of how the facts and evidence fit in to the law, and so forth.
The attorney will ask about the facts of the case and review all of the documentation that you have collected. A good document list is very helpful and the attorney’s office will assist in preparing that document list to be reviewed before the hearings, or ultimately the trial.
This may include financial documentation, including bank records, credit card statements, records of any other assets or debts, communication logs, calendars, journals, and notes. It may also include witness testimony regarding circumstances or events of the case and/or expert testimony regarding assets or circumstances. The Fourth Judicial District has a roster of Court Approved Experts that should be used for purposes of psychological evaluations, vocational evaluations, real estate appraisals, retirement asset valuations, income valuations, etc.
Generally, the attorney will help you prepare a binder of documents to organize your evidence. Your organization will help the attorney at trial to have everything readily available at hand for presentation. We advise our clients to use 3-ring binders to put the evidence together.
Cooperating with Your Lawyer
There is no way to overstate the importance of working closely with your attorney well in advanced of trial. As required by Division Family Notice 16-05 (Revised) (FN 16-05 Rev), at least thirty days prior to the day of trial, you and the opposing party are required to exchange and deliver to the Judge assigned to your case, memoranda addressing the issues which need to be resolved. Most of the issues which are addressed in these memoranda require that you provide input, ensure that the information contained within the memorandum is accurate, and that the information stated is complete.
To assist you, you should prepare for trial by communicating with your attorney about your position and by making certain that you understand and agree with what is contained in the memoranda. Thirty days out from trial affords sufficient time for you and your attorney to communicate regarding the issues to be addressed.
First and foremost, you should ask your attorney questions. Regardless of the type of case, it is the way to obtain accurate information. This will also afford you with the opportunity to ask questions about areas where you have concerns and ensure that you have a complete understanding of what is taking place in your matter, including developing a realistic approach to the overall case.
You should review a copy of previous memoranda filed with the Court on your behalf. It is also a good idea to prepare for trial by asking your attorney to provide you with information regarding what to expect at trial, where it will take place, who will be present and what to expect during the trial itself.
Although being active in your matter is advantageous, it is important to allow your attorney to fulfill their role and handle certain aspects of your case. If for any reason you are uncomfortable with an approach or problem which presents itself, make certain to continue to communicate with your attorney.
Emotional Preparation for the Trial
As important as preparing financially for a family court case is the need to prepare emotionally. Family lawyer professionals often see clients prior to their filing for divorce, and in cases of separation, they will see them many months prior to a trial. In many cases, lawyers see their clients at the beginning of the action and try as best as possible to prepare them emotionally for what lies ahead. Family law trials are unlike any other civil action in that emotions run high. Those divorcing, or separating from their spouse, become angry and hurt during this process. Never is the need for emotional support more necessary than when a judge makes binding decisions if the parties cannot resolve their matter prior to, or during a trial. Those going through a family law issue already know they saw a lot of money on a retainer for their lawyer. The economic impact of a trial can be huge. The legal costs and disbursements are not the only reason people need support when the other side is unreasonable or controlling. The toll that a family court proceeding can take on the client are immense. There are lots of ways to regain control over the process. Seeking counselling from a registered psychologist or therapist, or attending a divorce support group, or marriage breakdown support group may be the best course of action to help move you through the stages of divorce/separation. Talking to a family law lawyer prior to a case being filed is helpful to understand the process. It is imperative that you enlist the hands of a lawyer experienced in all family law matters, including support, custody and access, financial disclosure and property rights.
The emotional toll that experiences like these have on children are even more immense. For children, parents need to take care of them in both the short and long term. Some parents also experience difficulty in dealing with the fallout of a divorce. It is vital that somebody gets help to take care of the emotional aspects of the separation. Getting help is important so that you can be there for the kids and for yourself. Getting help now can prevent issues in the long term such as depression, anxiety, or a breakdown which unfortunately sometimes occurs when we push ourselves to our limits.
Trial Practice and Dress Rehearsals
Along with an extensive family law history, a lawyer should have years of experience with trial preparation, or a background in courtroom advocacy. He or she will have tried hundreds, if not thousands, of issues that you or your former spouse will be facing at trial. The difference with trial preparation, is that you are trying to win the case on behalf of the client, while trial run-throughs allow you to transfer the trial responsibility to your attorney. A mock trial or practice run-through will help to accomplish the latter .
Before the actual trial date, you’ll want to run through the case end-to-end. Your attorney can play the part from the bench (possibly even in his or her robe) to see how the flow will go on trial day. While this requires a larger commitment by your attorney, it will help to identify weaknesses in your case. Additionally, the mock trial will help you build confidence and become more comfortable with that person being your representative in front of the judge and jury (depending on the type of case).
Courtroom Protocol
When the day of trial approaches, it is important to know how to act and what to do once you step into the courtroom. There is a certain level of formality expected, and not only should you know how to conduct yourself, you should also make sure that your witnesses are prepared to act accordingly. Here are some general guidelines to conduct yourself in the courtroom: First and foremost, when in doubt, dress for court as if you are going to be interviewed by a potential employer. On the day of trial, the judge will make an assessment about you based on your dress, your mannerisms, your demeanor, etc. Show the judge that you take the process seriously and that your family matters case is important to you. Treatment of the judge is key. Be respectful and be sure that you remain calm and do not lose your temper in court. If you are unsure how to address the judge at the trial (ie "Your Honor" or "Your Majesty"), follow what your attorney indicates. As a general rule, if you are speaking to the judge, call him/her Your Honor. Always use the appropriate title and last name to reference not only the judge, but also opposing counsel and your witnesses. Additionally, always refer to your spouse as "your wife" or "your husband." Do not call your spouse by their first name while on the record in court. It is rude and borderline contemptuous. Practice with your witnesses ahead of time to make sure that they understand how they are to act in the courtroom. They should always answer the judge’s questions in a respectful manner and be polite at all times. Finally, witnesses should always remain calm, serious and polite in the courtroom – even if the trial becomes heated or if opposing counsel gets rude.
Opening and Closing Statements for Family Trials
Preparation should also include opening statements and closing arguments. The reason a lay person has no business representing themselves in court is because they don’t know the rules of evidence nor do they understand the significance of the law to their specific case. One of the primary roles of the judge is to make evidentiary rulings and to apply the law to the facts before the court. That role is not adjudicated by the parent (or their lawyer).
Opening and closing statements are important because they will provide the judge with a road map of what you will be proving and what they need to remember when determining the case. However, they are only effective when they focus on the relevant facts of the case and on the statute/law that directs the judge. The judge will only remember those things that the case is about. They will not remember extraneous stuff you put in your opening because you don’t know the difference. Likewise, the judge is not going to sit through a 30 minute opening statement where you offer the facts about access to the kids 5 years ago because you have forgotten to update yourself on the current law.
So how do you prepare effective opening statements? You begin with the obligatory "your honour", however, after that you avoid call signs like "I have testified to", "he/she testifies", "your honour will hear". You need to make it story like. You are laying out the facts and telling that story in relation to the law. You begin with who, what, where, when; get to the point.
You end with your prayer or what you are asking the judge to decide. In other words: Dear judge, this is what happened: -a- on -date- at -place-. I am asking you to determine: -what you want the judge to decide-.
This is the prayer of your opening.
Closing arguments end with the prayer and are the opposite of opening. After you have told the judge all of the things you want the judge to remember at the end of the trial, now you are asking them to decide. You are asking for a specific result for actions taken, because you are asking the judge to decide based on your evidence and based on what the law says is the result for your facts.
Trial Day Instructions
Common procedures are that a trial will be in either the morning or the afternoon, many judges prefer a morning start. It is best to be at the courthouse, in the court and seated at least 30 minutes before a trial’s start time. For 9:00 a.m. trial dates, if you are not in court by 8:30 a.m. you are running late.
It is almost never appropriate to have an attorney and spouse in the courtroom at the same time. If you are represented, your spouse should remain out of the courtroom and not present until such time as he/she is called as a witness. This is so that he/she does not hear your testimony and then tailor his/her testimony accordingly. Remember, if you have retained an attorney you have put his/her name on the line as your client. Therefore, you need to trust your attorney to do their job on your behalf. You should not be concerned what your opposing party’s attorney is saying to him/her. Your focus is on your case and doing what is necessary to win. Conceivably, you could testify in the morning, and have your spouse testify in the afternoon. While they may be on the same side in the litigation, they are on opposite sides of the "v" in the caption of the lawsuit. Only call your spouse to court as a witness until you tell your attorney that you are ready for him/her to testify.
Unless you are summoned for jury duty, at least one of the attorneys typically has a scheduling issue that causes a delay in the time your case actually starts. As a result, 30 minutes is often optimistic. Therefore, bring along something to occupy yourself until the start of your case.
Unlike almost all other court appearances you will encounter during the litigation process, you can expect that at a trial everything will be initially quiet and orderly in the courtroom without the presence of a judge. The clerk will typically remind people about turning off any electronic devices, and any time during the trial that such devices are observed on, the offending person will enter a "time-out" situation where they have to leave the room until they are called back to testify. The court clerk will also remind you to turn off your cell phone, which can be done by holding the power button for several seconds. You should turn your cell phone off during a trial while you are in the courtroom.
Similar to a scheduling issue with attorneys, judges also have scheduling matters that invariably cause delays. Therefore, it is common for a judge to enter the courtroom after the appointed start time of a trial.
After the judge enters the courtroom and begins to introduce the trial they may ask the attorneys to proceed with their opening statements. At least once during your trial , the judge may ask to speak with you and your attorney to determine if you are still interested in a settlement. The judge’s questions are generally very specific about the status of the case at that point and the topics addressed in the scheduling order. Therefore, no attorney will be surprised if you are not able to give an answer. The only issue that arises is when you respond to a question posed by the judge in a way that gives the impression that you will or will not settle the case.
The witnesses, including you, will be asked to wait outside the courtroom until such time that they are called to testify. The only time the judge will allow a witness into the courtroom prior to being called to testify is for the purposes of sequestering that witness. To sequester a witness means that the witness has to leave the courtroom after their own testimony is finished and prior to your or other witnesses’ testimony. Often, when one party’s attorney is closing, the judge will have your attorney bring you into the courtroom so your attorney can introduce you, and you can sit at counsel table with your attorney while your attorney is giving his/her closing statement. When you are called to testify, it is generally appropriate to remain in the witness box, as opposed to moving to the attorney’s table where you would be sitting with your attorney and the witness in the same area. Most likely, your attorney and the judge will ask you to re-take the witness stand once your attorney is finished with his/her opening statement.
It is likely that at least one of the parties will attempt to schedule the trial in a different location. Since the Wilmington division of the Family Court is a high traffic area, most cases tend to go to trial in the New Castle County or Kent County courtrooms. Rather than address that matter as a final injury to your very unpleasant experience thus far in the case, think of this as an opportunity for you to become familiar with the facilities in Kent County Court or the New Castle County Court.
Most of the judges in the Family Court in Delaware have a number of criminal trials scheduled for the same day. While these do not typically interfere with Family Court trials, be aware that if space doesn’t permit, the Family Court trial could be delayed for a criminal trial.
When the judge enters the room there is a formality that occurs. Just as with any other attorney in the court system, the judge will say something like "please call your first witness," and continue with various questions to the attorneys regarding various matters, i.e. whether the judge has heard the matter, etc. The judge may also deal with hearsay issues (including discussing the Delaware Evidence Manual), and other evidentiary matters. Once those preliminary matters are dealt with, you and I will begin with certain questions that we will have prepared prior to the start of the trial.