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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 05-25-2011, 09:05 PM
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Default Trial - Day 3 experience

This is a posting continuing my thoughts from each day in my trial. To get caught up see previous posts.

As I mentioned in my post Trial - Day 2 experience of yesterday, we were scheduled for a mid-trial settlement conference first thing this morning.

So, a new justice came in to give us their opinion on the trial so far. The mid-trial judge does not get anything but opening statements, some evidence brief, a summary of issues for trial and about 30 minutes to get familiar with the case. The mid-trial judge does not get any insight from the presiding judge. The mid-trial is prompted by the trial judge when the trial justice believes sufficient evidence has been heard to begin determining an outcome. The idea is to have a mid-trial judge give their independent opinion on how the trial will be decided in order to provoke settlement (saving time, money, anxiety).

We listed to a very learned justice go through the matters, cite some case law and precedent and reasoning for their opinion. I can't go into case details here (it's my motion to change spousal support due to income change). However, I admit my delight that the justice followed most of my pleadings in her opinion (although not 100%). After questions by myself and the ex, we were adjourned to see if we could formulate a settlement. Now, my ex and I haven't been alone in a room for years since we split...and it was unfortunately nasty.

I won't get into negotiating details, however we went at settlement offers for hours, including getting back in front of the mid-trial judge for clarification. Another two hours after negotiation we came to a virtual settlement, but my ex wants the night to think about it before signing it. We each traded off a number of things.

The most interesting thing was the mid-trial judge's comments on how the court system works and what can be expected. The justice spoke about how Canada is a common law jurisdiction, which means judges make decisions based on decisions that came before (precedent) and interpretation of law. It means judgments are subject to human opinion and difference and, although there is consistency and consensus, the exact results of a trial can be a crap shoot. The justice then said if either of us were seeking perfection in the courts judgments then we should check that ideal and wait for god in heaven. She also stated it was important to discover in ourselves if we wanted to nail the other person to the cross - that is a desire that will equally be unfulfilled by the courts and should be put aside in order to come to settlement.

Wise words.

We'll see how it goes tomorrow. I want settlement and have offered a lot in order to get on with life. If we don't settle, it's back to trial.

FG
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Old 05-25-2011, 10:28 PM
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It sounds like today was a successful day for you? Do you find the days at trial exhausting? How many hours are you in court during the day?
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Old 05-25-2011, 11:50 PM
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Quote:
Originally Posted by staysingle View Post
It sounds like today was a successful day for you? Do you find the days at trial exhausting? How many hours are you in court during the day?
I don't know if today was successful....if we reach a settlement then yes, otherwise...I guess not!

Strangely I don't find the trial exhausting. It runs 9:30 until 17:00 with 2 breaks and a lunch-the pace is actually fairly slow and methodical. I think the key is to being prepared - have control over your evidence, know where to find it and take time with answers. I haven't been an examiner yet, so perhaps conducting chief exam would be tiring. If trial continues then I will do exams and I'll report that experience.

As I reflect on it more, I would say that if I felt out of control in the courtroom, or overwhelmed with cross exam, then it would be exhausting. I know my ex is definitely exhausted - she complains out loud to the judge about it.

Another thing I did to reduce anxiety and feeling out of control was to rehearse testimony and story with friend. They'll help you catch parts of the story to drop or include.

I highly recommend attending a trial involving self reps and lawyers to get a sense of what being in control means. I mentioned how to do this in post 1 or 2. Very valuable.

Best-
FG
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Old 05-26-2011, 05:14 AM
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Just curious...
This mid-trial opinion of a secondary justice - does it any way carry over to your 'real' trial. Does that justice review his/her opinions? Or are they two seperate and distinct entities that never the 'tween shall meet?

Again, invaluable insights for me. tyvm.
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Old 05-26-2011, 09:42 AM
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The mid-trial is the same circumstance as a case conference or settlement conference.

In any of these venues, a judge is acting as an advisor of sorts, and recommending a settlement based on they have heard. As such, they have to remove themselves from case. A judge at a conference may not sit as your judge at trial.

All things said by you and by the judge at these conferences are automatically without prejudice, they are for the purposes of negotiation, so they may not directly be included as evidence at trial.

There are limits to this of course, and factual evidence that is produced may be entered at trial if it is relevent, but the statements of the judge are opinions and may not be used.
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Old 05-26-2011, 11:21 AM
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Sounds like it's used as a stop gap to prevent unnecessary expenditure of the courts time and resources, definitely a useful tactic.

I had a similar experience with my custody battle, the ex was going to lose her lawyer after that hearing since he was funded through legal aid and they advised him to remove himself based on the divorce application that had been put forth. (Legal aid does NOT do divorces in NB).

The judge had a free afternoon, so "highly recommended" we try and settle that day and that he would rule on any points of contention if they arose.
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Old 05-26-2011, 11:22 AM
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So did your ex sign the settlement agreement?
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