If you and the other party are not able to settle your issues and reach a full agreement, the judge will have to set an “Evidentiary Hearing” or a “Trial.” If the judge sets an evidentiary hearing or a trial in your case, you can find information on this page about how to prepare, documents to file, and what to expect.
What is the Difference Between an Evidentiary Hearing and a Trial?
An “evidentiary hearing” is a hearing where the judge makes a final decision about one part of the case. For instance, the judge may hold an evidentiary hearing to decide which what the child custody order should be. A “trial,” on the other hand, is a final hearing where the judge will decide all remaining issues and grant a final order (such as a final divorce).
At both a trial and an evidentiary hearing, both sides are expected to present witnesses and evidence to support each person’s view of the case. Find out more about each stage of the trial phase below.
Preparing for Trial
There are many steps and deadlines to follow as you prepare for your trial or evidentiary hearing. Learn more about the pre-trial requirements below.
The Discovery Process
Discovery is the process that allows each party to gather information to build their case. The purpose of discovery is to make sure that you and the other party have the same information that will be presented to the judge. It also helps both sides evaluate whether or not they would like to settle the case based on the evidence that will be presented at trial.
There are many different discovery tools available to both sides:
- Subpoenas: This is a request for someone to provide documents or appear in person to provide testimony. It must be issued by the Clerk of Court to be valid.
- Requests for Production of Documents: This is a written request to provide documents.
- Requests for Admissions: These are written requests asking that certain facts be admitted or denied.
- Interrogatories: These are written questions that must be answered under oath.
- Depositions: A potential witness is questioned under oath in the presence of both parties, their attorneys, and a court reporter. The judge is not present, but a transcript of the deposition may be presented at trial.
Because each case is different, there is no standard way to do discovery. You may need to consult with an attorney for assistance in understanding and conducting your own discovery.
WARNING!If you are served with discovery requests from the other side, do not ignore them. You must respond within certain deadlines. If you do not, you risk having facts deemed as admitted, or the other side can file a “Motion to Compel” and bring you before the judge for your non-compliance. Do your best to respond to the discovery requests. If you do not know how to respond to discovery requests, it is best to seek legal advice.
Disclosing Your Witnesses and Exhibits
You will need to decide what documents you want to present at trial and what witnesses you would like to testify. You must disclose the documents and witnesses you plan to present to the other party.
There are deadlines to disclose your list of witnesses and exhibits. The judge may have set these deadlines in the Order Setting Trial – check the order to find any deadlines for your case. If the judge did not set deadlines, the court rules require you to disclose your list of witnesses at least 45 days before trial, and documents must be disclosed at least 21 days before trial. If you do not disclose your list of witnesses and documents by the deadline, you may not be allowed to use them at trial.
FYI!You should put together a binder of all of the documents you plan to present at trial, and provide this to the judge a day or two before your trial date. It is a good idea to make 4 binders: one for yourself, one for the other party, one for the court clerk, and one for the judge so you all have a copy of the documents at trial.
Your Pre-Trial Memorandum and Financial Disclosure Form
Before your trial or evidentiary hearing, the judge may order you to file a Pre-Trial Memorandum (the judge may also call it a "Pre-Hearing Brief"). This is a summary of the arguments you plan to present at trial, as well as a list of witnesses and evidence that you plan to use. There is no form available here since your pre-trial memorandum will be unique to you and the issues in your case. The pre-trial memorandum must be filed by the judge’s deadline, and must be served on the other party.
Usually, you must also file an updated Financial Disclosure Form if property or financial issues will be dealt with at the hearing.
You should first review the tips discussed in Preparing for Your Day in Court.
On the day of your trial, arrive early to the courthouse so you have enough time to park, get through security, and get to the courtroom before your case is called. Bring copies of all the documents that you plan to use at trial.
The judge may allow each side to give an “opening statement.” This is a brief summary of the case you intend to present. Do not argue with the other side or offer any witnesses or documents at this point. This is just a chance for you to give a short statement of your case.
Next, the “moving party” – or the person who is trying to convince the judge what orders should be issued – will call witnesses. If there is no “moving party” the Plaintiff will call witnesses first. The person who calls the witness to the stand will be able to ask questions first. When that person is done asking questions, the other party can ask questions through “cross-examination.” Cross-examination is used to poke holes in the witness’s testimony or discredit the witness. After cross-examination, the party that called the witness gets to ask any final questions, and then the other party is given one last chance to cross-examine.
WARNING!Do not argue with a witness or the other party during the trial. You may object to a question or the testimony if you believe the question or the testimony should not be considered by the judge. Otherwise, if you feel that someone is lying or not telling the whole truth, wait until it’s your turn to ask the witness your own questions.
Once the moving party has presented all of his or her witnesses, the other party will present their case. The other party will call witnesses and the process above will repeat.
When all of the witnesses are done testifying, the judge may ask each party to give a “closing statement.” This is a final summary of the evidence that was presented at trial and why the judge should rule in favor of that person.
The judge then considers all of the evidence presented and makes a decision. The judge may give you his or her decision immediately in court. Or the judge may want to think about the evidence for a while and issue a written decision later.
After the Trial
After the judge issues his or her decision, the decision is not enforceable until is it written and signed into an official order. The judge may pick one party to “prepare the order” from the hearing. It is that person’s responsibility to prepare the written order from the hearing, submit it to the judge for review, and send a copy of the signed, filed order to the other party.
If the judge asked you to prepare a final Decree, you can find a form to use depending on the kind of decree granted. Visit Divorce Forms, Separation Forms, Annulment Forms, or Custody Forms to find the most common decrees.