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Getting Ready for Hearing or Trial

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How will I know when to be in court and what do I have to prepare?

Most courts will send you a scheduling order if your case involves a trial or a notice of hearing if your case involves a hearing. Read this important document carefully. It will tell you when you need to be in court and what you must file before the trial or hearing. If you do not obey the order, the court could impose sanctions that might include not being allowed to call your witnesses.

If your case is in the Palmer Court, you must file the following form to schedule a trial date:

If you do not file the Memo to Set Trial, nothing will move forward. For more information, please call the Family Law Self-Help Center.

View video: How Will I Know When To Be In Court? Play How Will I Know When to Be in Court? Video

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What is a trial brief?

A written summary or statement explaining your position or a particular issue to the judge. The trial brief states the facts, evidence, and legal arguments that you plan to present at trial and typically includes citations to legal authority (such as statutes, case law or rules) to support your position.

In family law cases, a trial brief is required to be filed before the divorce or custody trial by the deadline stated in the scheduling order and you must serve the opposing party with a copy. The trial brief is like a road map that tells the judge before the trial what you want the court to order and what are the disagreements with the other side.

To provide more detail about what you want, you can attach the following forms depending on the type of case and issues:

Divorce cases

Divorce with children or Custody cases

View video: How Do I Fill Out the Pre-Trial Brief? Play How Do I Fill Out the Pre-Trial Brief? Video

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What is a pre-hearing brief?

A written summary explaining your position or a particular issue to the judge. The pre-hearing brief states the facts, evidence, and legal arguments that you plan to present at a hearing and typically includes citations to legal authority (such as statutes, case law or rules) to support your position.

In family law cases, a pre-hearing brief is not required to be filed unless the judge orders it. However, you may choose to file a pre-hearing brief before a hearing. It can be helpful to give the judge a written summary of your position, especially if the issues are complicated or you think you will have trouble speaking in an organized fashion when you are at the hearing. One consideration is that if you file a pre-hearing brief, you have to serve the other side with a copy so they will know your position before the hearing.

To provide more detail about your position, you may attach the following forms depending on the type of case and issues:

Divorce cases

Divorce with children or Custody cases

View video: How Do I Fill Out the Pre-Trial Brief? Play How Do I Fill Out the Pre-Trial Brief? Video

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What happens at a hearing or trial?

You can expect the judge will introduce the case. The plaintiff or moving party will present their case or issue first. This involves presenting an opening statement that explains the version of the facts best supporting their side of the case, how these facts will be proven, and how the law applies to the case. After that, the plaintiff has the opportunity to ask the witnesses questions called "direct examination." Then the other side can "cross-examine" the same witnesses. The plaintiff can then ask more questions called "re-direct," to try to fix any inaccurate information that arose from the cross-examination. The plaintiff repeats this cycle until all witnesses for their side are done. The plaintiff also can present exhibits to be admitted as evidence.

The defendant or responding party goes next and presents their opening case and repeats the cycle described above.

The parties may present rebuttal witnesses if needed to address issues raised by the previous witnesses. After the parties present all of their witnesses, they each give a closing statement, highlighting the version of the facts that best supports each side of the case, how these facts were proven during the testimony, how the law applies to the case and why the judge should rule for one side and not the other.

The judge will issue a decision after considering all the issues presented at trial and the testimony of the witnesses. The judge's decision may be made orally from the bench immediately after the trial or hearing, or issued in writing some time after the conclusion of the trial or hearing.

View video: What Happens at a Hearing or Trial? Play What Happens at a Hearing or Trial? Video

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How should I behave in court?

  1. Arrive on time for your hearing or trial. Allow plenty of time to get to the courtroom. If there is not free parking at your local court, make sure you have enough money to park at a meter or use a pay parking lot.
  2. Dress neatly and wear conservative clothing. Shorts, T-shirts, plunging necklines, and torn clothing are not appropriate. You do not have to buy new clothing for court, but remember it is a formal place and you want to be conservative and respectful in dress and behavior.
  3. Certain behaviors are not allowed because they are noisy, distracting or disrespectful. You cannot: chew gum, eat, sleep, wear a hat, listen to earphones, text, talk on your phone, take photographs, or carry a weapon.
  4. Treat everyone with respect, including the opposing party, the judge, any witnesses and the court staff. Address the judge as “your honor.” Stand when the judge enters or leaves the courtroom. Remove your hat and turn off your cell phone.
  5. Do not interrupt anyone and do not argue with the opposing party. The judge will give each side an opportunity to present their information so wait your turn and you will be able to speak. Talk directly to the judge and not to the opposing party. Speak loudly and clearly into the microphone. Ask the judge for permission to speak if you need to say something and think the judge is moving on to something else.
  6. Bring an outline of what you want to say. As you cover each point, check it off. Before you finish, look back to see if you covered everything. The Judge will only want to hear information that is needed to decide the requests made in the court papers. Practice explaining your request to a friend. If your friend doesn't understand you or find your argument convincing, think about how to improve your presentation.
  7. Bring your records and documents you want the court to consider so you can refer to them. Bring a notepad and pens for taking notes during the hearing.
  8. Do not bring children. Unless the court has told you to bring your children to the hearing, make arrangements for someone to take care of them.
  9. Control your emotions. It is ok to be upset or cry. However, do not yell, roll your eyes, throw your hands up in despair, pound on the table or storm out of the hearing. If you need a short break to compose yourself, ask the judge for a brief recess.
  10. Before you leave the courtroom, make sure you understand what happens next. Do you need to come back for another court hearing? Do you need to prepare any written documents to file? Do you need to take other steps or actions? Will the Judge send an order by mail? Politely ask questions if you do not understand what will happen next.

View video: How to Behave in Court Play How to Behave in Court Video

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What do I say in my opening and closing statements?

The purpose of making these statements is to give the judge a road map of your side of the case. In the opening statement, state specifically what you want and why you want it. For example in a custody case, you may ask for primary physical custody because it is in the children's best interest to live with you. You make your case by summarizing the evidence and explaining how this evidence supports your case.

View video: Opening Statement Play Opening Statement Video

In the closing statement, you state again what you want and why you want it, summarize the evidence and explain how it supports your case PLUS state what is wrong with the other side's position.

View video: Closing Statement Play Closing Statement Video

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How does the questioning of witnesses work?

There is a specific order to how the questioning of witnesses happens. The plaintiff calls their witnesses first. The plaintiff asks the first witness questions which is called direct exam. The other side then asks that witness questions which is called cross-exam. The plaintiff can ask more questions of that witness which is called re-direct exam. This cycle goes on for all of the plaintiff’s witnesses. Then the defendant asks their witnesses questions and the cycle starts over again.

View video: How to Question Witnesses Play How to Question Witnesses Video

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How does direct testimony work?

Direct testimony is when you ask your witness open-ended questions and have them tell a story. For example, "Tell me what happened on August 15" or "Please tell the Court about my son's special needs" or "How do you think these needs are best met?"

View video: Questioning Your Own Witnesses Play Questioning Your Own Witnesses Video

When it is your turn to testify, tell an organized story. It is helpful to prepare your comments in advance by making an outline of the issues you would like to tell the judge. Do not plan to write out and read your testimony though. Tell the judge where you are going with your testimony. 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."

View video: Testifying Yourself Play Testifying Yourself Video

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How does cross-examination work?

The other side gets to ask leading questions. Examples are: "Isn't is true that you see my son crying every time you go to my ex's house?" or "Isn't it true that you sold some of our marital property without my permission?" These questions usually have "yes" or "no" answers. The intent of these questions is often to make you look bad so it is important to listen carefully and take notes to organize yourself to "fix" this on re-direct.

View video: Questioning the Other Side Play Questioning the Other Side Video

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How does re-direct work?

After you've been cross-examined, you should have a turn to explain to the court how the cross-examination testimony might have been misleading and what more there is to the story.

This is your opportunity to "fix" the cross-exam. Give your witness the chance to explain. For example, you might say "Please tell the Court what you have observed about my son's crying?"

Then your witness says, "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."

View video: How Does Re-Direct Work? Play How Does Re-Direct Work? Video

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What is the difference between testimony and asking questions?

It is important to understand that testimony provided by a witness is considered evidence which the judge can use to decide an issue in the case. Asking questions of a witness is not considered evidence. Instead, the witness’s answer is evidence.

If you are questioning a witness, do not use your question as an opportunity for you to provide testimony to rebut an answer that you disagree with or think is not honest. Instead, ask proper questions that will bring out the witness’s testimony to support the information you want the judge to know.

View video: Difference Between Testimony and Asking Questions Play Difference Between Testimony and Asking Questions Video

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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.

View video: What is a Rebuttal Witness? Play What is a Rebuttal Witness? Video

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What does the court consider evidence?

The Rules of Evidence control what evidence the court is allowed to consider (see below). There are two main forms of evidence - people's testimony as witnesses

and items presented as exhibits.

When people speak as witnesses in court it is called testimony. You can testify if you are the plaintiff / petitioner or defendant / respondent. Other people who have direct and relevant knowledge can testify as witnesses. Also people who keep records can testify about the records.

When things are used to present a case, they are called exhibits. This can be photographs, records such as police reports, medical, bills, appraisals, school report cards, etc. Basically any item that is relevant to the case can be considered as evidence.

View video: What is Evidence? Play What is Evidence? Video

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What are the Rules of Evidence?

They are rules that control what evidence the Court is allowed to consider. Their purpose is to get the most reliable, relevant and accurate evidence to the Judge. For example:

You can read the Rules of Evidence on the court's website, at your local law library, or Legislative Information Office.

View vdeo: The Rules of Evidence Play The Rules of Evidence Video

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How do I choose my witnesses?

You should carefully choose all witnesses. Find out how much time you will have to question your witnesses so that you can figure out which ones are the most important to present. Figure out why you want to call a particular witness by thinking about the following questions:

Once you decide which witnesses to call, you need to prepare an Offer of Proof for each witness (see below). Think carefully about whom you choose as witnesses and what they might say in their testimony because you do not want any surprises!

View video: Choosing Your Witnesses Play Choosing Your Witnesses Video

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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

To help you organize your thoughts, we have forms that you can use to prepare Offers of Proof for witnesses and exhibits: Offer of Proof - Witnesses, SHC-1081 (Word | PDF) and Offer of Proof - Exhibits, SHC-1082 (Word | PDF).

View video: What is an Offer of Proof? Play What is an Offer of Proof?  Video

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How do I prepare my witnesses?

It is not cheating to prepare your witnesses. To best prepare your witnesses for the direct examination, write out the questions you will ask them at trial. Practice asking your witnesses these questions. Prepare an Offer of Proof that you will say to the judge to help you focus their testimony.

To prepare them to be cross-examined by the other side, talk with your witness about what questions the other side might ask them.

Remind your witness that they must always tell the truth. Emphasize that they are not allowed to make up stuff. It is ok to say, "I don't know" or "I don't remember" or "please rephrase the question because I don't understand."

View video: Preparing Your Witnesses Play Preparing Your Witnesses Video

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What if a key witness says they won't come to court?

You may subpoena a witness that tells you he or she will not come to court to testify. A subpoena is a court order requiring a witness to show up in court for a specific reason. The court has different forms to use for subpoenas:

Please see the detailed instruction sheet, How to Subpoena a Witness, CIV-109, Adobe Acrobat PDF logo for more information.

View video: What Do I Do if a Witness Won't Come to Court? Play What Do I Do if a Witness Won't Come to Court? Video

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How do I prepare my exhibits?

There is a very specific way to prepare your exhibits BEFORE you come to court. This involves:

Read carefully:

View video: How Do I Choose and Prepare Exhibits? Play How Do I Choose and Prepare Exhibits? Video

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How do I introduce an exhibit?

Exhibits cannot testify for themselves, so somebody has to introduce them to the court. Over time, a standard procedure has developed for admitting exhibits, and you need to understand this if you plan to submit exhibits.

In summary, the person introducing the exhibit has to know about it, be able to identify it and confirm that it is authentic. For example, you could introduce a letter written by the defendant to you or a photograph of your house, because you will have first hand knowledge to identify it. However, you could not introduce a photograph of your ex's new house in Florida if you've never seen it.

View video: How Do I Introduce Exhibits in Court? Play How Do I Introduce Exhibits in Court? Video

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What about objections?

You have the right to tell the court that you think the other side is somehow violating the Rules of Evidence by objecting. The Rules of Evidence set out the reasons to object, which are very complicated. If you do not feel comfortable with objecting, you should consult with an attorney.

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 and the witness shouldn't answer) or "Overruled" (which means the question or exhibit is allowed and other side can continue).

View video: How Do I Make Objections? Play How Do I Make Objections? Video

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Will the judge object for me?

No, the judge will not object for you. The judge is not like a referee, who calls a foul when he sees one. You need to let the judge know that you think the evidence that the other side is trying to admit is not allowed by saying "I object!" The judge will then rule on whether the objection is correct and if evidence can be admitted or not.

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What are some of the documents that will be required to prepare for trial or a hearing?

Before trial, you will be required to file documents in divorce and custody cases. These include a witness list, an exhibit list and a trial brief.

View video: What Documents Do I Need to Fill Out? Play What Documents Do I Need to Fill Out? Video

The witness list is the list of people you plan to call as witnesses during your trial or hearing. The point is to give the other side notice of who you may call as a witness at the trial.  Both the people involved with the case are automatically witnesses.  You don’t have to call everyone on the list at the trial if you decide a particular witness’s testimony isn’t needed.  You must also state whether someone will be an expert witness. The judge will tell you when the witness list is due. If you do not file your witness list, the court may sanction you by not allowing you to call your witnesses.

View video: How Do I Fill Out the Witness List? Play How Do I Fill Out the Witness List? Video

The exhibit list is the list of exhibits you plan to introduce as evidence during your trial.  It will be the cover sheet for all of the paper exhibits you have at trial. 

The trial brief is a written summary or statement explaining your position or a particular issue to the judge. The trial brief states the facts, evidence, and legal arguments that you plan to present at trial.  It typically includes citations to legal authority (such as statutes, case law or rules) to support your position. In family law cases, a trial brief is required to be filed before the trial, usually by the deadline set out in a scheduling order.

 

A pre-hearing brief provides similar information to a trial brief, but it can be filed before a hearing. In family law cases, a pre-hearing brief is not required unless the court orders it. However, you may choose to file a pre-hearing brief that summarizes your position before a hearing.

View video: How Do I Fill Out the Pre-Trial Brief? Play How Do I Fill Out the Pre-Trial Brief? Video

PLUS

If you are getting a divorce, you will need to file with your trial brief:

If you are getting a divorce and children are involved OR
If you are filing for custody, you also need to file with your trial brief:

You must give a copy of everything that you file in court to the other side or their attorney if there is one. This is called serving the other side. Please read the information about serving the opposing party.

View video: Giving Copies to the Other Side (Certificates of Service) Play Giving Copies to the Other Side (Certificates of Service) Video

You may find the following instructions and forms helpful:

Instructions

Forms

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What's the best way to prepare for hearing or trial?

The best way is to watch a hearing or trial. Most court proceedings are open to the public and if they are closed, there will be a sign on the door.

Don't miss any deadlines in your case. If you do, you may not have the chance to go back and fix what you missed.

Plan your case, remembering all the important steps along the way. Start out by writing out your plan, including your witnesses and exhibits. Write out what you and your witnesses are going to say. Use the forms available from the Family Law Self-Help Center and the Alaska Court System to introduce evidence. Practice. Remember what your end goal is.

View video: What's the Best Way to Prepare for a Hearing or Trial? Play What's the Best Way to Prepare for a Hearing or Trial? Video

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Who are the people in the courtroom?

For many people, the courtroom is an unfamiliar place. We may know generally what happens in court (a judge decides a case), but not how the courtroom works. It helps to look at the roles of the people actually in the courtroom. This diagram outlines the people in a trial and where they sit in the courtroom. Some courtroom designs may vary, but this diagram shows a standard layout.

Diagram showing where people in the courtroom sit.
  1. Judge:  The judge makes sure that hearings and trials are conducted according to the law and court rules. The judge sits in the front of the courtroom behind a raised bench that faces the whole courtroom. In civil hearings and trials without juries, the judge decides the issues in the case.  The judge is addressed as "Your Honor."  The judge wears a black robe when presiding over a hearing or trial in the courtroom.  You should stand when the judge enters the courtroom.
  2. In-court clerk:  The in-court clerk sits to the side of the judge in his/her own specialized work station. The in-court clerk does several tasks in the courtroom, including checking in the parties when they arrive, announcing the judge when he/she enters the courtroom, swearing in the parties by giving the oath to tell the truth, making an electronic recording of the court proceeding, and writing "log notes" which are notes of what is said in the proceeding.
  3. Witness:  The plaintiff or defendant may have people who are witnesses that will present testimony or introduce a physical piece of evidence that is relevant to an issue in the case.  Both the plaintiff and defendant (or their attorneys if represented) have the opportunity to ask the witnesses questions. The witness sits in a separate area often called the “witness box” which is often located next to the in-court clerk.
  4. Plaintiff:  The plaintiff is the person who filed the case and sits at a table across from the judge’s bench and in front of the public seating area. If the plaintiff is represented by an attorney, the attorney will sit with the plaintiff.  In a criminal case, the plaintiff is either the State of Alaska or a local government such as a municipality, depending on the type of crime that the defendant is charged with committing.  The prosecutor is the lawyer who represents the government to put on a case to convince the jury that the defendant is guilty.  In a civil case, the plaintiff is a private individual or a corporation who has a dispute with the defendant.
  5. Defendant:  The defendant is the person against whom the plaintiff filed the case.  The defendant sits at a table next to the table where the plaintiff sits.  Both tables are across from the judge’s bench and in front of the public seating area. If the defendant is represented by an attorney, the attorney will sit with the defendant.  In a criminal case, the defendant is accused of committing a crime.
  6. Jury:  If the case is a jury trial, a group of people from the community are randomly selected to serve on the jury to hear the evidence in the case.  They sit in assigned seats in an area called the “jury box,” which is located to the side of the courtroom so the jurors can see the judge, plaintiff, defendant and witness box.  In a criminal case, the jurors will decide whether the prosecutor has met their burden of proof to show that the defendant is guilty of committing a crime.  Civil cases often do not have juries and instead are heard only by a judge who will decide the issues.  Sometimes, however, there are civil jury trials and the jurors determine which party prevails or wins the case.
  7. Public seating: Most all cases are open to the public to watch.  Members of the public sit in the back and quietly observe the proceedings. 
  8. Podium:  There is a podium (raised small table with a microphone to stand behind) located in between the tables where the plaintiff and defendant sit.  The podium may be used by attorneys to question witnesses or by the plaintiff and defendant if they are representing themselves.  Sometimes the judge may allow everyone to stay seated.  If you are representing yourself, it is a good idea to ask the judge if you should stand to question witnesses or present testimony or if it is ok to stay seated. 

View video: What Happens at a Hearing or Trial? Play What Happens at a Hearing or Trial? Video

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What should I expect about the judge?

The judge is neutral and unbiased. This means the judge usually has no expression on his or her face when in court. So don’t think the judge is against you or doesn’t like you if he or she doesn’t smile or nod when you are testifying. Also, the judge may write or type notes about your case or go through your file during the trial or hearing. This may be helpful to understand your case and organize information to make the decision.

You cannot call the judge on the phone or talk to the judge about your case if you see him or her out in the community. All communication with the judge has to be done in court on the record or by filing papers with the court and that you give the other side a copy. The judge will send notice to both sides about hearings and trial and will send both sides copies of any orders in the case.

View video: About the Judge Play About the Judge Video

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Can I participate in the hearing or trial if I can’t be there in-person?

If you do not live in the community where the case is being heard and can’t easily get there, you may ask the court to appear and testify by telephone. You can file:

If the court grants your motion, it will provide you with information about how to participate by phone. Usually the court will provide you with a phone number to call in to the hearing. Make sure you are in a quiet location and if possible call from a land line instead of a cell phone.

View video: Appearing in Court From a Distance Play Appearing in Court From a Distance Video

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What other resources can I use to prepare?

A private attorney can be found by word of mouth or through the Alaska Bar Association's Lawyer Referral Service

The Family Law Self-Help Center website has information and forms and the staff can answer questions on the telephone help line.

The Internet, your local bookstore or law library also have materials available for preparing for trial or hearings.

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Rev. 7 January 2014
© Alaska Court System

www.courts.alaska.gov
webmaster@akcourts.us

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