Wednesday, January 31, 2018

The Two Final Types of Hearings, and What Really Happens in the Judge's Chambers

OK, last two types of hearings, mostly because they don’t warrant a post by themselves:  settlement conference and pretrial conference.  The settlement conference is exactly what it sounds like - a court appearance devoted to settlement.  The settlement conference usually takes place 3-4 months before trial.  In different courts in Maryland, different things may happen at a settlement conference.  If you have a court-ordered custody evaluation, the evaluator would give his/her report on the record (recorded after being sworn to tell the truth).  You or your attorney are allowed to ask clarifying questions only.  At the settlement conference, the magistrate may try to help settle the case.  They may make suggestions or evaluate the case if it will help. If you settle the case, the magistrate may put the agreement on the record or maybe you could get your divorce at that hearing, if you have reached full agreement. 

If both you and the other party have attorneys, the conference could take a number of different forms:  it could be in the courtroom and very formal on the record, or the Magistrate could be more informal and meet with the attorneys in their office, and then the attorneys come out and talk to their clients and each other.  The latter form sometimes makes clients really uncomfortable, because it's somewhat like the Wizard of Oz, in that you don't know what is being said in chambers (which is what we call the Magistrate or Judge's office).  Here's my $.02, having been both a client and one of those attorneys.  I prefer the informal.  When people know they are being recorded for posterity, which is what happens at ALL TIMES when you are in a courtroom (the recorder is almost never turned off), they are not going to think out loud.  They are not going to ask curious questions.  They are not going to have a conversation. No one is going to assess the merits of various positions in the case.  All talking in a courtroom is formal, and usually very one way - you talk to the judge/magistrate, and they make a decision.  In chambers, there is a lot of give and take.  The Magistrate will verbalize assessments of strengths and weaknesses in a case, and as they WILL NOT be the trial judge, are not prejudging your case.  There are times I like that, because often one side or the other will not see a weakness in their case that could be fatal; sometimes one side thinks they have a smoking gun which really is not. Having a third party tell them that can make all the difference in the world.  Sometimes, the Magistrate comes up with a compromise or a way of reaching compromise of which no one thought.  At any rate, their point of view is from the receiver of the evidence, so you get some idea how the Judge might view your case and your smoking gun.  I think that's very helpful, and yes, I thought so as well when I was you, the client, and wasn't invited into chambers.  It's maddening for the client not to know what's being said, and I know you imagine that we're all back there having coffee, cracking jokes, exchanging the secret handshake and "fixing" your case. I won't lie to you and say that we're all deadly serious back there, but there's no secret handshake, and we don't predetermine your case.  What does happen is that we come up with some different insight to bring back to you so we can seriously discuss settlement.  

Here's the big secret - the Judge/Magistrate doesn't want to decide your case.  I know, that's what they're paid to do, make a decision.  There are, however, more cases in the courts than there are judges and magistrates to hear them.  They have more than enough to do without your case. They, as well as we, know that families are better served making their own decisions.  The studies show that folks who have a hand in crafting their own settlement come back to court less often, if at all, and that's better for families and for the court.  The judiciary knows this as well as those of us in the Trenches, so they really work hard to help you settle your case.

The pretrial conference is perhaps the most deadly boring of all court appearances.  It is the hearing at which the court makes certain the case is ready for trial.  In some courts, that’s where you get your merits trial date if you asked for more than a half a day of trial.  In others, you already have a trial date and the court is making sure that you have identified all of your potential witnesses and designated your documents, photos and other evidence.  They want to know that there are no outstanding discovery disputes or other issues that will hold up trial.  THe court also wants to make sure that you can try the case in the amount of time you told the court you need for trial (remember I talked about this when we discussed the scheduling conference?).  The court requires clients to be at this hearing as well, but for the life of me, I can’t understand why, if you already have your trial date.  Boring and short, those are the bywords for pretrial conferences.  Here in the Trenches.

Tuesday, January 16, 2018

What to Expect For Your Contested Hearing

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.

Saturday, January 6, 2018

Look Confident at Your First Family Court Hearing

I don’t know about you, but the most stressful thing for me in any new situation is not knowing what to expect.  I hate it.  I like to know where I’m going and at least an idea of what’s going to happen.  I imagine most of my clients feel the same.  Probably the most stressful thing in their lives is going to court.  In this series of posts, I’m going to outline the different hearings you may have in your Maryland case, and what to expect.  

The first hearing is the scheduling or initial conference.  That’s the hearing at which you are going to receive your court dates.  Let’s get you there.  The first thing you need to know is when and where to go.  Check your scheduling order for the time and the date.  Google the address and locate the area parking.  Calculate how long it will take you to get to the courthouse and add 20 minutes.  You don’t want to be late and you will have to go through security and a metal detector (no knives, horse blanket pins or other weapons).  Oh, and don’t forget your calendar, because this is the hearing at which you will get your court dates.

If you’re feeling really ambitious and you have access to the internet, look up your case on Maryland Case Search. Depending on the county your case is in, the magistrate and hearing room will be listed there. If you don’t look up your case in advance, don’t worry.  Inside the lobby of every courthouse in Maryland is a listing of the day’s court docket.  In most of them, it is electronic, although in some, it is still a paper docket, posted on the wall.  The docket will list your name, case number, courtroom number and location of the courtroom. Head to the courtroom.  

In the courtroom before the hearing time, you’ll see a person sitting up near the magistrate’s bench.  That’s the courtroom clerk.  The clerk will check in all the parties for the morning’s cases.  There will be a number of cases on the docket; you will not be the only one in front of the magistrate at your hearing time.  At the hearing time or shortly thereafter, a door will open in the front of the courtroom near the magistrate’s bench and the magistrate will come out.  When the door opens, you stand until the magistrate takes the bench and instructs you to sit down.  Then you sit down and wait for your case to be called.

Until your case is called, you don’t talk.  Period.  When the magistrate calls your case, you go up to the tables in front of the courtroom.  Many of them are marked either “Plaintiff” or “Defendant.” Some are not marked at all.  Sit at the table marked for your party designation in the case, or ask the magistrate where to sit.  When you are called on to speak stand up to speak unless the magistrate tells you otherwise.  Refer to the magistrate as “Your Honor.”  At no point are you to talk directly to the other side while you are in front of the magistrate; you only talk to the magistrate.

The magistrate is setting a lot of dates at this hearing. In some jurisdictions, you will have received a notification of the need to take co-parenting (parenting during divorce) courses; in others, those dates will be assigned at the scheduling hearing.  The court will ask whether you have any pendente lite (during the course of the litigation) issues that can’t wait until the merits trial. Those are issues like child access, child support, spousal support, attorney’s fees and suit money.  The court will ask how long you need to try those issues before the court.  Be aware that some courts have limits on the amount of trial time they will give you for pendente lite issues.

Some courts bifurcate, or divide, child custody and monetary issues.  Others do not.  If it is bifurcated, the court will give you two sets of dates.  Otherwise, you will be asked how long it will take to try your case.  This is important, because the court will not give you more time than you request if it turns out you underestimated your time.  Some courts will give you a trial date at this time; others will give you only a pretrial conference at which they will assign a date.  By “trial date,” I also include multi-day trials.  The magistrate will also assign a settlement conference date at which the court will see if they can help you settle your case, and a pretrial conference, to make sure you are ready for trial.  Some courts make you wait in the courtroom to receive the papers indicating your court dates; others will just mail you the papers with the dates.  Either way, it’s important to write the dates down.

One final point for you to remember.  If you don’t have a lawyer at the scheduling conference, and hire one after that, the lawyer will have to be available on the dates you chose at your scheduling conference.  The court will not change court dates because your new lawyer can’t make them.  My advice?  If you intend to hire a lawyer, either do so before the scheduling conference, or make sure you have the calendar of the attorney you intend to hire with you in court.  Otherwise, you need to find a lawyer to match your court dates.  Here in the Trenches.