19 May What to Expect in Court- Civil
Part I: The Players
Your family law case will have similar players as in the Criminal arena. Here is a brief description of who everyone is and what they do.
The Judge: He or she is an Attorney who was elected for a set term to serve as a County Judge. The Judge’s role is to uphold courtroom procedure, keep cases moving forward, and to decide issues of law. The Judge will hand down decisions in all pretrial motions governing such issues as temporary child support and visitation. If a trial is necessary but a jury is not desired or applicable to your case, the Judge will then become “decider of fact”, listening to the evidence and reaching a final decision in the case.
Bailiff: The bailiff is typically a deputy from the Sheriff’s department. He or she is tasked with maintaining order and safety in the Courtroom. During the civil case dockets, the bailiff also helps arrange the order in which Attorneys are seen.
Clerk: The Clerk is not a licensed attorney, but is an administrative professional vital to the Court process. He or she works closely with the Judge in maintaining the docket. The clerk is responsible for scheduling and posting updates on Casenet. He or she is also in charge of keeping “record” of official proceedings such as trials or hearings. In the current age, that means the clerk is responsible for operating the recording equipment. It is necessary to tape trials or hearings in case one of the parties appeals the Judge’s ruling. The appeals court will need to review the “record”.
Opposing Counsel: There is no prosecutor in civil law, only the other side of the law suit. We call the other side “opposing counsel”. He or she is an Attorney hired by the other litigant to represent their interests and negotiate on their behalf. Attorneys have to carefully walk the line between compromising and negotiating in order to settle cases in their client’s best interests while at the same time being prepared for an adversarial showdown in the even negotiations aren’t going well.
Part II: Courtroom Etiquette
If you have never been to a courtroom before, you may be nervous. Everything is new and you aren’t familiar with what’s going on or how to behave. But there’s no need to be anxious. Your Attorney will be there to answer questions and advise you on proper etiquette. Here are some points to remember:
Seating Arrangements: Typically the attorneys will sit in the juror box or at conference tables in front of a Judge. There will be a wooden “fence” separating the public from this area available only to “officers of the Court”. You do not sit with your Attorney unless you are on the record for a trial or hearing. You will be sitting in large benched seating area known as the “audience”.
Who Speaks: Your Attorney will speak for you in open Court. You will not be addressing the Judge or other party unless you are directed to do so. If both parties are able to be civil, there is nothing wrong with chatting in the audience area if Court is not in active session. However, it is usually best to stay away from the other party and to remain quiet during your time in Court.
Negotiating at your Court dates: You will notice that court sometimes turn into negotiating sessions. This is because it is a rare opportunity for both attorneys AND both parties to be present at the same time. Attorneys are typically able to bounce off ideas with their clients and inch closer to a resolution. It is more efficient and overall cheaper than placing four phone calls.
Part III: The Court Process
The Court process will start with one of the parties filing a petition or complaint. They will “serve” the paperwork, usually via a Sheriff’s deputy. The paperwork should contain your first Court date. It is important to retain a lawyer as soon as possible if you are served since you have to file a response within a short period of time, typically a month. Your attorney will need time to prepare the response.
Once the initial paperwork has been filed by each party, a structured amount of discovery will be completed. In family law cases this may include financial and property statements as well as proposed Parenting Plans and child support forms.
This is also the point that temporary motions are most commonly used. One party will file a temporary motion for support, visitation, custody, or perhaps a request by the Judge to preserve particular property from being sold or otherwise disposed of. These orders are short-lived and meant to resolve matters temporarily while the Court process unfolds.
After all of this, a series of Settlement/Pretrial Conferences will be held. In some jurisdictions, your Attorney and opposing counsel will go into Judge’s Chambers to discuss the case. Legal issues will be argued over and the Judge will give guidance on moving the case forward. Negotiations will continue between the parties. After a certain amount of back and forth, you will need to decide if you are going to be able to reach a settlement, or if you are going to take your case to trial to let the Judge decide the outcome. Most cases are settled.
This allows certainty and is significantly cheaper. But some cases simply can’t be settled. The Judge will set it for trial. Both parties will present their evidence and have a chance to argue their case. A decision will be issued and it will then be binding upon both parties. A civil trial can usually be wrapped in under a few days. Complicated issues or cases with a lot of high-emotion witnesses can take longer.
Knowledge is power. Knowing what to expect and who everyone is will go a long way to easing your anxiety over your next court date.