{"id":1343,"date":"2012-05-17T20:13:41","date_gmt":"2012-05-17T20:13:41","guid":{"rendered":"http:\/\/scoresbyfamilylaw.com\/blog\/?p=1343"},"modified":"2019-11-23T22:26:38","modified_gmt":"2019-11-24T05:26:38","slug":"trying-the-divorce-case-in-court","status":"publish","type":"post","link":"https:\/\/scoresbyfamilylaw.com\/blog\/2012\/05\/17\/trying-the-divorce-case-in-court\/","title":{"rendered":"Trying the Divorce Case in Court"},"content":{"rendered":"

This post will continue my series on Arizona Divorce Procedure Step-by-Step.\u00a0 My last post in this series was titled Preparing the Divorce Case for Trial<\/em>.\u00a0 As is evident by the title, that post addressed the work and steps involved in preparing to present the case to the judge in a court trial.\u00a0\u00a0 This post will focus on the divorce trial process\u00a0itself.<\/p>\n

A very small percentage of cases, perhaps only 5-10 percent, \u00a0actually go all the way to trial.\u00a0 Most cases settle \u00a0at some point along the way before trial.\u00a0 Frankly, this is as it should be.\u00a0 Court trials are a very inefficient and frustrating way to resolve disputes, particularly in family law cases.\u00a0 Family law cases are especially emotionally charged and involve sensitive, personal issues.\u00a0 The individuals who are best equipped to come up with the ideal resolution of these sensitive issues are the parties themselves, with the\u00a0help of their attorneys.\u00a0 Trial time in Arizona courts, and particularly in Maricopa County, is very limited.\u00a0 Despite their best efforts, family court judges are often unable to reach the resolution that will be the best result for all involved simply due to the limited time they have to hear and understand the nuances of the case before them.\u00a0 The best outcomes in family law cases are those decided by the parties themselves rather than judges.<\/p>\n

That said, certain cases do need to go to trial, not because a court trial will yield the best result, but simply because the parties for various reasons are unable to settle.\u00a0\u00a0 A court trial is sort of a “last resort” to resolve the parties’ disputes.\u00a0 In Arizona there are no jury trials in divorce cases.\u00a0\u00a0 Divorce cases that go to trial are decided by a single judge.\u00a0 The trial itself is divided into four main phases, as follows:\u00a0 1)\u00a0Preliminary Matters and Opening Statements; 2)\u00a0Presentation of the Petitioner’s Case;\u00a03) Presentation of the Respondent’s Case; and 4)\u00a0Closing Arguments.\u00a0 These are discussed separately below.<\/p>\n

1.\u00a0 Preliminary Matters and Opening Statements.\u00a0 <\/strong>Before beginning the formal presentation of evidence, the parties and lawyers may have some preliminary discussions with the judge at the beginning of the trial.\u00a0 For example, if the attorneys\/parties have\u00a0agreed to the admission into evidence of certain trial exhibits (documentary evidence previously disclosed and provided to the court clerk for marking), the attorneys may inform the judge of the agreement to admit some or all of\u00a0those documents, and the judge may formally admit the documents into evidence.\u00a0 This process, when used, can speed up the trial presentation and allow more trial time to be used for substantive testimony on the issues before the court than on the laborious process of offering documents into evidence one by one.<\/p>\n

In addition, during this beginning phase of the trial, witnesses may be sworn in, any\u00a0settlements reached can be formally recited on the record and made binding on the parties, and either lawyer may invoke the rule to exclude witnesses from the courtroom until it is their turn to testify.\u00a0 See<\/em>\u00a0Rule 615, Arizona Rules of Evidence.\u00a0\u00a0 Some judges may also\u00a0allow brief opening statements.\u00a0 An opening\u00a0statement\u00a0provides an\u00a0overview\u00a0of the issues before the court, a statement of each party’s position on each issue, and a brief explanation of the evidence that will be offered to support the party’s position.\u00a0 An opening statement is not the time to argue the case to the court.\u00a0 When a thorough pretrial statement has been prepared and filed before trial, opening statements are ordinarily not needed and are in fact usually discouraged by the court.<\/p>\n

2.\u00a0\u00a0Presentation of the Petitioner’s Case.<\/strong>\u00a0 Once the “housekeeping” matters are concluded, the formal presentation of evidence begins.\u00a0 The person who filed the divorce case, the petitioner<\/em>, goes first.\u00a0 The petitioner’s lawyer calls his witnesses in the order he has determined best.\u00a0 Each witness is sworn to tell the truth and then answers questions designed to elicit testimony about the facts the judge needs to know to make\u00a0 a decision in the case.<\/p>\n

Witnesses are also used to lay\u00a0 foundation for the introduction of trial exhibits not previously admitted.\u00a0 For example, when the petitioner is testifying, the lawyer may ask her where she works, how much money she earns at her job, and so on.\u00a0 The attorney may then hand the petitioner a copy of her paystub which has been marked for identification as “Exhibit 1”, for example,\u00a0ask her questions needed to establish the validity and accuracy of the paystub, and then move to have “Exhibit 1” (the paystub) admitted into evidence.<\/p>\n

After the petitioner’s lawyer has finished with his questioning of each witness, the respondent’s lawyer may cross examine<\/em> the witness.\u00a0 Cross examination is the process of questioning an adverse witness.\u00a0 It can be extremely powerful when done correctly.\u00a0 The lawyer who calls a witness to testify cannot usually ask the witness leading questions, which are questions suggesting a “yes” or “no” answer.\u00a0 On cross examination, however, leading questions are the rule.\u00a0 An example may be helpful here.\u00a0 The petitioner’s lawyer in a child custody case should NOT ask this question to his own client: “Your husband never feeds the children or puts them to bed at night, does he?”\u00a0 After the respondent\/husband testifies, however, the petitioner’s lawyer on cross examination could ask the husband, “Isn’t it true that you never feed the children or put them to bed at night?”\u00a0 “Isn’t it true that your wife always does these things for the children?”<\/p>\n

Following cross examination of each witness, the petitioner’s lawyer has an opportunity for redirect examination.<\/em>\u00a0 On redirect examination, the petitioner’s lawyer gets to ask questions to clarify answers given during cross examination.\u00a0 Redirect examination may not go beyond the scope of the cross examination.<\/p>\n

Once the petitioner’s lawyer\u00a0has finished calling all of his witnesses, the petitioner “rests”, meaning that the petitioner has concluded her presentation of evidence.<\/p>\n

3.\u00a0 Presentation of the Respondent’s Case.\u00a0 <\/strong>After the petitioner rests, it is the respondent’s turn to present her case.\u00a0 The respondent’s lawyer calls her witnesses, asks questions, and introduces exhibits just as the petitioner’s counsel did during his presentation.\u00a0 Following the direct examination of each of the respondent’s witnesses, the petitioner’s counsel may conduct cross examination.\u00a0 The respondent’s counsel then conducts redirect examination if desired.\u00a0 Finally, when the respondent’s counsel has finished her presentation of evidence, the respondent rests.<\/p>\n

4.\u00a0 Closing Arguments.\u00a0\u00a0 <\/strong>Once both the petitioner and the respondent have rested their cases, the judge may allow or request closing arguments.\u00a0 Closing\u00a0arguments are a chance for each attorney to essentially summarize the case for the judge.\u00a0 Each attorney has an opportunity to present an oral review of the case and evidence on an issue-by-issue basis.\u00a0 As to each issue and each relevant fact, the lawyer may refer to evidence (testimony and documents) presented during the trial that the lawyer argues establishes or supports his client’s position on that issue.\u00a0 The lawyer should also\u00a0briefly restate the relief\u00a0his\u00a0client\u00a0requests on each issue.\u00a0 With trial time being so limited, however, some judges do not allow closing arguments or request that closing arguments be presented in writing within a specified time after the trial concludes.<\/p>\n

At the end of the trial, the judge may render a decision immediately, orally, from the bench.\u00a0 This, however, is very rare.\u00a0 Most judges will take the case “under advisement”, meaning that they will consider the evidence presented and render a decision in writing later.\u00a0 Judges are allowed up to 60 days to render a decision after\u00a0a trial.<\/p>\n

Copyright \u00a9 2012 by Scoresby Family Law \u2013 J. Kyle Scoresby, P.C. All rights reserved.<\/p>\n","protected":false},"excerpt":{"rendered":"

This post will continue my series on Arizona Divorce Procedure Step-by-Step.\u00a0 My last post in […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[109],"tags":[98],"class_list":["post-1343","post","type-post","status-publish","format-standard","hentry","category-divorce-process","tag-trials"],"yoast_head":"\nTrying the Divorce Case in Court - Arizona Divorce & Family Law Blog<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/scoresbyfamilylaw.com\/blog\/2012\/05\/17\/trying-the-divorce-case-in-court\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Trying the Divorce Case in Court - 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