Hearing and Trial Preparation

1. Hearing and Trial Preparation Presented by The Alaska Court System’s Family Law Self-Help Services

2. Welcome • We provide legal information, not legal advice. What this means is that we give you information on court forms and procedures, but not advice on strategy or interpretation of the law. • Only an attorney representing you can provide advice on strategy or interpret laws affecting your case. • Communications during this class are not confidential. • We provide services to both sides in a case, so that means we will give the same kind of help we’re giving you to the other side.

3. Class Summary • Required Papers • What Happens • Evidence: Witnesses • Evidence: Exhibits • Rules of Evidence: Objections

4. How will I know when to be in court and what I have to prepare? • You will get an Order from the Court. • Scheduling Order (trial) • Notice of Hearing (hearings) • Read this document carefully. It is very important. • It will tell you when you need to be in court and what you must file before the hearing or trial. • If you do not obey the Order, you could receive sanctions. These might include not being allowed to call your witnesses.

5. What are some of the documents that will be required? • Witness List • Exhibit List • Pre-Hearingor Trial Brief • Property Division Worksheet • Parenting Plan & Best Interests Affidavit • Child Support Affidavit • Other, as required by your scheduling order

6. What happens at a hearing or trial? • Judge introduces case • Moving party or plaintiff goes first • Opening statement • Direct: questions first witness • Cross-examine: other side asks witness questions • Re-direct: to “fix” cross-exam • Repeat cycle until all witnesses for this side are done • Responding party or defendant goes next • Repeating the above cycle • Rebuttal witnesses (if needed) • Closing statement • Judge’s decision (then or later)

7. What do I say in my opening & closing statements? • The purpose is to give the Judge a road map. • Opening • What you want. • Why you want it. • How you are going to make your case? • Summarize your evidence. • Explain how this evidence supports your case. • Closing • All of the above PLUS what’s wrong with the other side’s position.

8. How does direct testimony work? • Ask your witness open-ended questions and have them tell a story • Tell me what happened on August 15… • Please tell the Court about my son’s special needs… • How do you think these are best met? • When it’s your turn, tell an organized story • Prepare your comments & make an outline • Tell the Judge where you’re going. For example, “now I’m going to talk about the parenting plan I’ve proposed and why I think it’s in our children’s best interests.”

9. How does cross-examination work? • The other side gets to ask leading questions. • Usually yes or no questions • With a spin that makes you look bad • Examples include • Isn’t is true that you see my son crying every time you go to my ex’s house? • Isn’t it true that you sold some of our marital property without my permission? • Listen carefully & make notes. You can “fix” this on re-direct. “Yes, but….”

10. How does re-direct work? • This is your opportunity to “fix” the cross-exam. • Give your witness the chance to explain. • Please tell the Court what you have observed about my son’s crying? • He starts crying uncontrollably when I come over to drive him to visitation. For the first half of the drive he is sobbing, but by the time we get to the drop-off, he is totally silent and will not speak. He will not get out of the car by himself. • After you’ve been cross-examined, you should have a turn to explain to the court how the cross-examine might have been misleading and what more there is to the story.

11. What is a rebuttal witness? • Someone who is not on the witness list. • This person’s testimony is suddenly needed to rebut something unexpected that another witness said. • For example: • Your ex testifies that your child is sick so often because you will not do what the doctor says. • You call the Doctor as a rebuttal witness to explain how well you care for your child, who has numerous medical conditions that result in frequent illnesses.

12. What is the difference between giving testimony and asking questions? • Testimony is the story told by a witness. • Asking questions gets a witness to tell a story. • This can be a difficult but important distinction. • Your direct exam is testimony. • When it is your turn to cross-examine, you should ask the witness questions, rather than give rebuttal testimony.

13. Review: The order of things at a hearing or trial. • Judge introduces case • Moving party or plaintiff goes first • Opening statement • Direct: questions first witness • Cross-examine: other side asks witness questions • Re-direct: to “fix” cross-exam • Repeat cycle until all witnesses for this side are done • Responding party or defendant goes next • Repeating the above cycle • Rebuttal witnesses (if needed) • Closing statement • Judges decision (then or later)

14. What does the Court consider evidence? • People: witness testimony • You • Other people who have direct and relevant knowledge • People who keep records (see below) • Things: exhibits • Photographs • Records: police, medical, bills, appraisals, school records etc. • Other as relevant

15. How do I choose my witnesses? • Carefully. • Find out how much time you will have. • Figure out why you want to call a particular witness. • What will they say? • Will they really help your case? • Why is their testimony relevant? • Prepare an Offer of Proof for each witness. • You do not want any surprises!

16. What is an offer of proof? • Sometimes, before you call a witness, the Judge will want to know why you are going to call that person so that she can decide whether the testimony is necessary and relevant. • An Offer of Proof is a short statement from you telling the Judge • why you want a witness to testify • what that witness is expected to say • and why this is relevant and necessary to the case • To help you organize your thoughts, we have forms that you can use to prepare an Offer of Proof for each witness and exhibit.

17. How do I prepare my witnesses? • It is not cheating to prepare. • Write-out your questions. • Practice the questions with your witness. • Be prepared for cross-examination: talk with your witness about what questions the other side might ask them. • Prepare an Offer of Proof to help you focus their testimony. • Remind your witness that they must tell the truth. • They are not allowed to make up stuff. • It is ok to say, “I don’t know” or “I don’t remember” • Witness Exclusion Rule

18. What if a key witness says they won’t come to Court? • You may subpoena them. • A subpoena is a Court Order requiring a witness to come to court. • The Court has forms for subpoenas • to appear • to appear and produce • for taking a deposition • Please see the detailed instruction sheet, Form CIV-109, for more information.

19. Focus on Exhibits • Think about what kinds of exhibits might be useful proof for specific issues: • Financial • bank statements; credit card statements; house appraisal or broker’s opinion (not tax appraisal); Kelley Blue Book printouts for vehicle value; loan documents • Custody & Visitation • school reports; counselor’s report; medical reports

20. Preparing Exhibits • Once you have selected what photographs, bills, school reports, etc. that you want to use in court, you must prepare them. • Write-up an Offer of Proof • Mark with the stickers • Copy • Exchange • Follow step-by-step instructions. NOTE: Be mindful of confidential info. If admitted, these are public documents unless made confidential. You can black out account & social security numbers and ask court to make custody related documents confidential.

21. How do I introduce an exhibit? • Exhibits cannot testify for themselves, so somebody has to introduce them. • The person introducing the exhibit has to know about it, be able to identify it and confirm that it is authentic. • You could introduce a letter written by the defendant to you. • You could introduce a photograph of your house, but you could not introduce a photograph of your ex’s new house in Florida that you’ve never seen. • The exhibit must satisfy all the rules of evidence before it is admitted. • This is a very complicated area, but there are recognized techniques. If you think a particular exhibit is critical, you should consult with an attorney.

22. What about objections? • You have the right to tell the Court that you think the other side is somehow violating the Rules of Evidence. • As soon as you hear something (usually a question but it could be an exhibit) that you think violates the rules, say “I object!” • The Judge may ask you why, or may simply decide by saying either “Sustained” (which means the Judge agrees with you and the other side must stop that question & the witness shouldn’t answer) or “Overruled” (which means the other side can continue).

23. What are these Rules of Evidence? • They control what is allowed to be considered by the Court. Their purpose is to get the most reliable, relevant and accurate evidence to the Judge. • The most important rules are: • People can only talk about what they know first hand. • You have the right to cross-examine anyone whose words (whether written or spoken) are being considered. • The testimony must be relevant. • Leading questions cannot be asked on direct exam. • You can object when you think one of these rules is being broken. • The rules are on-line at http://www.state.ak.us/courts/ev.htm or at your local library, court or Legislative Information Office.

24. Will the Judge object for me? • No. • The Judge is not like a referee, who calls a foul when he sees one. • You need to call the fouls as you see them, by saying, “I object!” • The Judge will then rule on whether that really was a foul. • Remember: this is an adversarial process and you must speak up for yourself.

25. More about the Judge • The Judge must appear neutral and impartial, and therefore intentionally has no expression when listening to testimony. • One sided -- or ex parte -- communications are forbidden. • You cannot call the judge to talk about the case. • Both sides must be present for any communications you have with the judge. • You must show the other side any papers you give the judge.

26. What’s the best way to prepare for hearing or trial? • Go watch a hearing or trial. • Prepare your exhibits. • Don’t miss any deadlines. • Plan your case & keep your eye on the ball. • Write out your plan. • Write out what you & your witnesses are going to say. • Use the forms we give you. • Practice.

27. What Happens After the Hearing or Trial is Over? • The Judge will make a decision: • From the “bench” • Take under “advisement” • Ask the Judge who will write up the final order. • You have 5 days to object to any errors in a proposed order; use form CivR 78 Objections, SHC-1635. • If the other side fails to file the final order, write it up yourself and file with a Notice of Filing, SHC-1605. • Before you leave the courtroom, be sure you understand what happens next. • Keep your address and phone number current with the court.

28. Accessing Court On-Line Information • To View Your Case On-Line • www.courtrecords.alaska.gov/ • Click on “Court View” • Enter case Number or Name and click “Search” • “Events” for hearing information • “Dockets” for papers filed • To View Court Calendars On-Line • www.state.ak.us/courts/trialcts.htm#cal • Click on “Superior Court”

29. Final Review & Other Resources • Guidelines for Courtroom Behavior • Other Resources • A private attorney • Word of mouth • Yellow pages • Lawyer Referral Line • (907)272-0352 or (800)770-9999 • The Family Law Help Line • (907)264-0851 or (866)279-0851 • www.state.ak.us/courts/selfhelp.htm • The internet, your local bookstore or law library