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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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  #1  
Old 05-24-2011, 07:44 PM
fieldgrey fieldgrey is offline
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Default Trial - Day 2 experience

This post is the follow up to 'Trial - Day 1 experience', where I am documenting some of my trial experiences hoping it's of benefit to others facing trial.

Court resumed late this morning because our justice was called in to do a 'mid-trial' on another case. A mid-trial is like a settlement conference - a different justice comes in to attempt to find settlement based on the facts as discovered in the case thus far. This mid-trial justice reads the litigants' opening statements and any pertinent list of facts/evidence provided by the presiding justice. As I understand it, mid-trial is usually ordered by a justice after sufficient testimony has been heard to start clarifying facts...in hopes that the parties will settle instead of prolonging trial.

Well, our justice has ordered a mid-trial tomorrow morning before we resume trial.

I've been on the stand for another day, this time to be cross-examined by my ex. We spent a lot of time on insignificant issues - I don't know where the justice gets his patience from. It was an inefficient cross, and we can learn best practices for examination:
1. keep your questions brief and to the point
2. wait for one question to be answered before starting another one
3. do not cut off the other party
4. do not make declarations without a question
5. do not ask a question if you do not know the answer you will get

My ex did not do my cross exam well, and so I came out of it very positive.

Number 4 above was the problem today: my ex was so insistent on grinding her axe that at times she would read a statement and leave it hanging without a question. She would make evidence submissions without attaching questions to it. The justice had to step in and correct her approach, at times calling her out of order.

I struck up a conversation at lunch with a lawyer. He said, 'the most important thing is to keep evidence simple, get to the facts and repeat the basics so the justice sees your point and remembers it'.

That is not what my ex did on cross exam today: she wandered from document to document, often not making points, and often just asking me to give an opinion on a statement. This is the best situation, and really is the result of not following #5 above: without a hard question to answer, being able to just respond to a statement allowed me plenty of time to reinforce my basic facts and beliefs. This was a big mistake by the opposing party.

The outcomes for today are:

1. This is examination, not making speeches. Form your questions well or your examination will back fire.
2. Be organized. Write your questions. And if you are referring to evidence have the evidence citations written with the question so you can find the evidence fast.
2. When a judge tells you that you are out of order, take it seriously.

Finally, we were interrupted for a 5 minute hearing on another urgent matter. The lawyers stepped up and the most interesting thing (other than how some litigants really do screw their own case on disclosure) is the judge's comment to the lawyers that we were more organized than most lawyers he's ever seen. I think we've curried favour with the justice which has given us great latitude as SRLs, because we are seen as working in good faith.

First up tomorrow is the mid-trial. If there is no settlement we'll finish cross exam of me and go to first witness exam. I prefer to settle, but I think my ex wants to hear the axe grind a little bit longer.

FG
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Old 05-24-2011, 08:12 PM
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It sounds like it is going well for you.

Be careful though, you sound almost too happy with the way things are going. Not trying to rain on your parade, just keep you balanced.
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Old 05-24-2011, 08:15 PM
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Quote:
Originally Posted by fieldgrey View Post
Well, our justice has ordered a mid-trial tomorrow morning before we resume trial.
Some insight please into what a mid-trial is?

Quote:
Originally Posted by fieldgrey View Post
2. When a judge tells you that you are out of order, take it seriously.
Can you be more specific as to how that played out, please?

I certainly appreciate you sharing your experience.
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Old 05-24-2011, 08:25 PM
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Thanks FG,
Sharing your experience is invaluable!
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Old 05-24-2011, 09:08 PM
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I would reiterate DTTE point about not being overly confident. You don't want to come over as "overly" confident in court and give the impression that you know you are winning. Act like you have everything at stake and that you don't know which way things are going until you have the final outcome. Let the opposing party dig their own hole.

When I went through my own trial I was allowed to take some paper and pen on the stand with me. I wrote down every question during cross examination and I asked the opposing party to repeat if necessary. It bought me additional time to think before I responded but also gave everyone in the court (including the Judge) time to consider if the question was reasonable.
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Old 05-24-2011, 09:25 PM
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Quote:
Originally Posted by dadtotheend View Post
It sounds like it is going well for you.

Be careful though, you sound almost too happy with the way things are going. Not trying to rain on your parade, just keep you balanced.
I am putting a positive spin on it to be encouraging here to others. I am also trying to keep my spirits up.

Quote:
Originally Posted by wretchedotis View Post
Some insight please into what a mid-trial is?
I tried to explain mid trial in my post: it is a brief settlement conference. The trial justice hands over opening statements and an evidence brief with notes to a new justice. This new justice tries to advise the parties where the decision will likely go in order to get settlement. If the parties don't settle the trial resumes with the trial justice.

Quote:
Originally Posted by wretchedotis View Post
2. When a judge tells you that you are out of order, take it seriously.

Can you be more specific as to how that played out, please?
There are rules for examination and cross examination. See the sticky post on this forum containing the memorandum I posted on how to examine on the stand, it contains very good details. If you go outside that you could get rapped on the knuckles. Here are two examples of cross examination trouble:

1. My ex cross-examined me on my employment and asked a question about it. She did not like my response so she declared out loud her opinion on my response. That is absolutely not allowed: she should present her views either as a witness, or in her closing submissions. Examination is for questions. The justice dealt with this a few times, and then finally called her behaviour inappropriate and directed her to stop.

2. My ex, to her disadvantage, would give mini-speeches about her opinion on my situation and then ask me to respond. This gave me perfect moments to express my opinion without having to answer a direct question. I'm sure my ex thought she was scoring points in a speech on my income or employment or who I was dating, but she really opened the door to giving me the last word. This resulted in situations described in point #1 above several times.

Quote:
Originally Posted by Nadia View Post
I would reiterate DTTE point about not being overly confident. You don't want to come over as "overly" confident in court and give the impression that you know you are winning. Act like you have everything at stake and that you don't know which way things are going until you have the final outcome. Let the opposing party dig their own hole.

When I went through my own trial I was allowed to take some paper and pen on the stand with me. I wrote down every question during cross examination and I asked the opposing party to repeat if necessary. It bought me additional time to think before I responded but also gave everyone in the court (including the Judge) time to consider if the question was reasonable.
I agree with everything you say. It's important to show patience on the stand. A couple of times I rushed to answer and had to catch myself. I would ask for repeats of questions, or state I did not understand the question.... mostly because my ex's questions would be 4 or 5 sentences long, but sometimes to think about the answer. Sometimes I would ask for time in a question to write down my notes.

Another technique I used on the stand was to refer to exhibits or introduce rebuttal evidence in answering a question in order to disrupt the flow, or simply to state my response with evidence. It means my evidence is retained in the mind of the court.

If anyone reading this thinks it's cocky or over confident, that's only what is portrayed here. The actual minute for minute work was grueling, with my mind racing to protect every one of my positions. It's very tiring, and very humbling.
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Old 05-24-2011, 10:37 PM
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good stuff here.
my biggest problem (i think!) in going to trial will be fear of the unkown on what to expect while in there.

It's really nice to hear some of your thoughts and experiences.
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Old 05-24-2011, 10:53 PM
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Quote:
Originally Posted by wretchedotis View Post
good stuff here.
my biggest problem (i think!) in going to trial will be fear of the unkown on what to expect while in there.

It's really nice to hear some of your thoughts and experiences.
I had some of the same fears. I addressed them by attending family law trials before mine. Generally you have to get dispensation from the parties via the clerk, but it's worth watching a trial for a day - it gets rid of the unknown. Start with the court office group leader, they get you going with the court officers on duty.

Under the heading "I wish I knew then what I know now", I wish I had realized how much control the litigants express over the proceedings. Here are the chief examples of how an SRL can express that control:
1. pay attention to the submissions in the trial management conference to find out what the other party's pleadings are for trial, then get your defense in line
2. use the admits to clear the air on agreed facts and also give you cross exam material
3. get your evidence in order
4. prepare opening statement that summarizes your case highlights (with witness will say) in two pages or less (and print extra copies)

Once I'm done with the trial I will do a greatest hits list of getting to trial and being in trial. I wish I had that clarity before and I'm happy to share this with any self rep no matter what their case.

FG
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Old 09-04-2011, 12:42 AM
clx4 clx4 is offline
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Default how to examine on the stand

"There are rules for examination and cross examination. See the sticky post on this forum containing the memorandum I posted on how to examine on the stand..."

I am having trouble finding this sticky. If anyone could point me in the right direction, I would appreciate it very much.

I am heading to trial as a SRL at the end of the month and would like to avoid wasting the goodwill of the court. Not to mention a slap on the knuckles. This is way too difficult as it is already.

Thanks again to fieldgrey for all the great support and generosity.
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Old 09-04-2011, 10:01 AM
clx4 clx4 is offline
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I'm pretty sure the number of procedures are limitless.
In fact if they ran out, they'd make up new ones just for fun.

In general, I the whole process is unreasonable and self serving for certain participants.

The one thing I wish I had done sooner was to go to the court house. Walk around, familiarize yourself with the people. Talk to the staff as much as possible and listen to what they say. Ask questions. Don't sweat the answers, you won't get the one's you want. You may not even like them. But the more you become familiar with how things work. The sooner things will sink in and the more comfortable yo will feel.

Almost everyone you meet will be a bit like you. Confused, frustrated, often angry or upset. Some in denial. others just in it for the money. All wishing it were different and desperately trying their best. No-one, not the judge, clerk, receptionist, lawyer or attendant is immune from this. You are in good company and many of these people genuinely would like things to work out. And if you can help, it will be easier for you and others.

The family court system is incredibly broken. A lot of time and effort has gone into trying to make it different if not better. But it isn't going to happen in our lifetime. And certainly not in the time your case goes through.

Again, the more time I spend in the court building, the less fear I have. I left it pretty late, and that was a mistake.

good luck
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