A few weeks ago, we addressed the processes involved in getting ready for trial. This post, we will talk about the trial itself, and I will give you an overview of what you might expect if you have a family law trial in Snohomish County.
Type of Trial: The term “trial” is often synonymous with juries. Family law cases are not heard by juries. They are what is called “bench trials,” which means that the case is heard by a judge, and that judge decides all factual and legal issues. Typically, these would be done in the Snohomish County Superior Court building, but during COVID, the trials are done by video conferencing. Very likely, this means you will be in your lawyer’s office for the entirety of the trial.
Which Judge: Snohomish County has a system where you could get any one of dozens of potential judges. It depends on who is available the day your trial is set to begin and is assigned out. This creates some real challenges. Two different judges might have very different experiences – one might have come out of the prosecutor’s office, and another might have been a very seasoned divorce lawyer. Two judges will apply the same law, but their rulings might vary significantly. That inherent uncertainty is one of the risks in taking a case to trial. (In other counties, this can differ – some places have a judge assigned to a case from day one, and the parties can make very sophisticated predictions on how that particular judge might rule on the issues in the case.)
How Long: How long a trial lasts varies. The most simple ones can occur within a single day. Very complicated ones that involve several issues. such as a highly complex custody dispute paired with a highly complex property division, can take up to two weeks. (I have heard of ones that went as long as a month, but that is an extreme outlier; I would say the average length is between one and four days.) At the bare minimum, both parties would be expected to testify, and then any additional supporting factual witnesses for disputed issues and experts.
Expense: As you may imagine, even a short trial gets fairly expensive if you are paying several hundred dollars an hour. The exact amount of preparation time will vary based on the situation and the attorney, but the “rough estimate” I give clients is that each day of trial (7 hours) will involve twice the amount of preparation time (14 hours). This holds up for trials that a few days long, but starts to get less lopsided the longer the trial gets.
As mentioned in the trial preparation post, you will likely be asked to make a substantial deposit in your attorney’s trust account up front, and you may end up on a payment plan afterwards if those funds are depleted. The expense of trials is, without question, one of the reasons parties try and look for compromises.
Video Conferencing: Right now, trials are done through video teleconferencing due to the pandemic. This means that you will likely be at your lawyers office so that they can better manage the technological issues associated with the trial. Your lawyer will work with you to make sure that the cameras work and that they can easily share evidence on their screens.
If technical glitches crop up during a trial, do not be alarmed. The Courts understand we are all learning a new way of doing things and generally tend to be very understanding when these things arise.
If you and your attorney decide that you should participate somewhere other than their office, I cannot stress enough the importance of practice and dress rehearsals of the procedure before the trial. Ideally, you want to have all of the technical issues dialed in before the trial, so that you can focus all your time and energy on presenting your case to the Court in the best way you possibly can.
Structure: All civil trials follow the same structure – preliminary motions – opening statements – Petitioner’s evidence – Respondent’s evidence – Petitioner’s rebuttal (any evidence in response to new things the Respondent introduced) – closing arguments.
Preliminary motions and issues are always addressed before a trial gets going. This can be things like agreed evidence (the parties agree certain evidence gets to come in without the need for testimony), motions to exclude or limit certain evidence (called motions in limine) or scheduling for witnesses. (Often, experts will need specific time periods to testify, given their busy schedule. These types of things can disrupt the usual Petitioner-Respondent-Petitioner sequence.)
Opening statements are often very brief, or non-existent. The judges who hear the case will have already read trial briefs and have an idea what the case is about. If an opening statement is offered, it will often just highlight particular things an attorney wants the court to focus on. This differs quite a bit from jury trials, where an opening statement might be a very involved production to educate jurors about a case.
Testimony is offered by witnesses who are called one at a time. The person calling the witness gets to ask them questions and have them introduce evidence (such as documents, reports, or photographs). The other party then gets to cross examine the witnesses to draw out any missing information, weak points, or other issues with their testimony.
Once the parties have called all their witnesses, then the parties may do closing statements. Again, because this is a bench trial, these are often very limited productions because the Court will have already made up their minds about many of the issues.
Rulings: Contrary to what people expect, Courts typically do not issue the rulings right at the end of a trial. It is not like a jury trial where there are verdicts that are handed down and read in court. Often the judges will take the case under advisement, think about it, and set a hearing a few weeks after the trial to give the orders. Courts will often take the opportunity to explain the basis for their parties and try to help them understand why they ruled the way that they did.
Appeals: You have 30 days from the Court’s formal ruling to appeal. This is a "drop dead" deadline that cannot be missed - you will want to discuss this option with your lawyer well in advance of the 30 day mark. Appeals are a long discussion so I will address them in a different post, suffice to say family law appeals occur, but they are rare.
Other Practical Considerations: Trials are exhausting. For many people, they describe the experience as one of the most stressful experiences of their lives. If at all possible, try and plan for the aftermath of the trial. Very likely, you will be physically, emotionally, and financially depleted. Try to set things up to give yourself some additional time off to recover. If at all possible, try not to schedule anything terribly important for the couple of weeks after a trial, because you will still be recovering.
If possible, you may also want to find ways to avoid or limit contact with the other party. Likely, emotions will still be running high, so you will want to avoid opportunities to “vent” your grievances on the other party.
Make sure and schedule meaningful time to debrief with your lawyer as well. Often, you will be so stressed during the trial that you may miss certain nuances of the trial. There may be things that the judges or lawyers did that seem alarming or confusing – do not add to your stress by wondering about them. In the time between the trial and the ruling, your lawyer will likely be able to provide you with some valuable insight and allay many of the fears you might have.
Conclusion: There is an enormous amount to discuss when it comes to trials. There is a reason lawyers devote their whole lives to the practice and study of these processes. Despite their complexity, hopefully this post has given you a general idea of what to expect if your case goes this route. In closing, I’d like to offer you some reassurance. If your case ends up in trial, it does not mean that you or your lawyer failed. Some cases just have to be tried. While judges might differ in their rulings somewhat, I can also reassure you that every single person on the bench in Snohomish County feels the weight of their responsibility, and will do their best in the trial and their rulings to protect you and your children. In my experience, they are men and women who are working hard and genuinely do want to "get it right."
As always, I hope this helps. Good luck!
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