Going to Trial

Only a small fraction of family law cases end up in trial. A trial is a much larger proceeding than a mere hearing. A trial involves the presentation of evidence usually through pre-marked exhibits and witnesses giving testimony from a witness stand. While a hearing might last for a matter of minutes or hours, trials generally last for several hours, several days, or several weeks.

In a typical divorce trial, the plaintiff will have the first burden of proof. He or she will be required to call witnesses, present evidence, and move forward with whatever proof the court needs to see to understand their legal positions.

As each witness for the plaintiff takes the witness stand, the attorney for the plaintiff will have the opportunity to examine the witness and ask the appropriate questions. Then, the attorney for the defendant will have the opportunity to cross-examine each witness. Usually the plaintiff’s attorney can ask additional questions, known as re-direct examination. And, if necessary and appropriate, the defense attorney may then get a second opportunity to ask questions of the witness, known as re-cross-examination. Occasionally, the judge himself will interject questions along the way. After all of the plaintiff’s witnesses have testified, the defendant will have the opportunity to call his witnesses. Each of the defendant’s witnesses will likewise be subjected to direct examination, cross-examination, redirect examination, re-cross examination, and/or questions interjected by the judge.

As each of the witnesses testifies, certain documents will be admitted into evidence. Once admitted into evidence, the documents are available for review by the judge. After the case is concluded, the judge will consider all of the testimony by all of the witnesses as well as all of the documents admitted into evidence. Based on this evidence, the judge will render an opinion.

Depending on the state in which the case is being heard, trials entail different technical procedures. Some of these procedures require the submission of trial briefs, pretrial motions, and certain disclosures prior to trial. Some states require the submission of written summations or proposed findings of fact and conclusions of law after trial. It is important to understand what the local procedures are and to follow them closely.