The next hearing you will have, after the scheduling conference, if you requested it, is called a pendente lite hearing. That means during the course of this litigation. At a pendente lite hearing, the court will decide issues from the date of that hearing until the date of trial (unless you come to an earlier agreement). The types of issues the court will determine are child access, child support, spousal support, attorneys fees and court costs like the payment of experts. Issues are either determined with prejudice or without prejudice. If an issue is decided without prejudice, that means that any decision is not to be used at any later hearing or in any further negotiations as an admission that either party thinks that’s how the issue should be decided finally.
What I have to say next applies not only to the pendente lite hearing, but also to other contested hearings. The first thing you have to know is how much trial time you have. Simply because you have two hours of trial time doesn’t mean you have that much time. You have half of that time in a normal situation. If your children have a best interest attorney, you may have even less time, because then there are three sides making arguments. When you look at your half of the time, not all of it is putting on your witnesses. Some of it has to be used for your opening and closing statements, and some of that is used for cross examination of the other side’s witnesses. So, if I have two hours of trial time, I interpret that to mean I have roughly 40 minutes to put on witnesses. That’s not a lot of time, and you have to plan your time carefully.
It’s not just time you need to think about. There are rules to presenting evidence and documents. There are ways witness testimony has to be presented. It’s not like having a conversation. There are rules that govern what can and cannot be said. You also have to think about what would be persuasive to your audience. Every client thinks their story is egregious and that the court will be shocked; that’s usually not true. It takes a lot to shock a judge. You make decisions on what to present based on what will help your client get what they want.
What about for you? What should you expect heading into a contested heating? First, plan to spend a lot of time with your lawyer preparing your testimony. I know it’s taking a lot of time away from work, but it can’t be helped if you want your hearing to be as successful as possible. Second, plan to make yourself available for a LOT of phone calls from your lawyer, especially in the last few days before the hearing. The facts of our lives in the Trenches are that everyone tries to settle a case before a hearing. No one wants to try a case without having tried to settle it. Some cases settle well before trial; others settle on the eve of trial. When the case settles on the eve of trial, all of the back and forth between the sides and the refinement of details takes place in a compressed time frame. It is not unknown for negotiations to continue until 11pm the night before trial. Be prepared for that- it’s stressful and requires you to think quickly and analyze options on the fly. Your lawyer is used to this and is thinking clearly and able to help you analyze options. Don’t be afraid to ask them for help weighing your options.
If you do end up going to trial, don’t mistake your lawyer’s attempts to settle for being something that they aren’t. Your lawyer is prepared for trial. Your lawyer is prepared for trial as if the settlement discussions never took place. Your lawyer’s attempts to settle the case doesn’t mean they have no faith in you or your case, or that they’re not going to do their darndest for you in court. One of the great things about working in the Trenches is that we can move in two or three directions at a time. We can try to settle and at the same time prepare to go to trial; for us, they are not mutually exclusive. So, keep the faith, ride the madness and believe your lawyer is on your side. Here in the Trenches.