JUST HOW DO TRIALS WORK?
Having been through a spate of trials and hearings over the past few months, it has come to our attention that many clients have little familiarity with how courtrooms actually work. Ironically lawyers assume that clients know how trials work. Litigation is what we do every day. Clients also tend to assume they know more than they actually do. Their experience with trial comes from television. Unfortunately, they miss a crucial distinction. Judge Judy and Judge Joe and all the other television judges are there to provide amusement. Real court is much more formal and is directed toward exploring all the relevant facts in a question and answer format.
In Pennsylvania, real court can come in the form of proceedings before a master or before a judge. The difference is not terribly different if you are a litigant. Masters are lawyers appointed by elected judges to take evidence and publish recommendations concerning support and property issues. We are commonly asked whether these folks are “real judges.” Technically, they are not because they have not been elected to their positions. But, they have their jobs because judges respect their viewpoints. Even though a master’s ruling can be appealed to the judge, many judges rely heavily on what their masters have recommended.
Whether trial is before a judge or a master, the procedure is usually the same. The party who filed first (the plaintiff) puts on his or her evidence first. Evidence usually comes in two forms. Testimony and documents corroborating testimony. As the plaintiff goes first in starting the trial, the plaintiff has the right to choose what witnesses appear in what order. That can even include situations where the plaintiff starts the case by calling the defendant as a witness. It can be very unsettling to be told by your attorney that your spouse will proceed first only to find out one minute later that your spouse has elected to make you the first witness to testify.
Trial is like a baseball game. Let’s assume that you are the plaintiff. Your team is up to bat first. Your testimony is conducted by your lawyer, It’s the lawyer’s job to cover with you every salient fact that needs to be put into evidence. Once your examination is completed, you cannot bank on getting another chance to tell your side of the story to the court. With rare exception, the excuse that you left the documents at home or at the bank or at Aunt Sadie’s does not work. The court wants the documents when the witness it testifying.
Once you finish telling your story under the direction of your lawyer, your spouse’s lawyer gets to ask you questions in what is called “cross examination.” During what lawyers simply term “cross”, that lawyer can ask you questions that are leading. “Isn’t is true that…..” “You never told your spouse that you borrowed from your retirement account, did you?” The point of cross examination is to allow the opposing side to test your credibility or to show you documents or other evidence that may appear to contradict what you are trying to say. It is often pointed and unpleasant which is how it is intended to be. Every witness must be prepared to tell his or her story and to have that story challenged.
Once the other attorney has had his way with you, your attorney gets a second shot at asking you questions. That comes with a major limitation. He or she must limit questions to subjects on which you were cross examined. This “re-direct” examination is not an invitation to repeat the testimony you already gave. It is to give your attorney a chance to clear up things where cross examination has created misunderstanding or ambiguity. Take for example the question: “Did you ever discuss taking money from the retirement account with your spouse?” You answered that you had not. The fact is that you had not discussed the subject avoided the fact you had left the retirement withdrawal form on the table for your spouse to sign and that she had signed it. This testimony clears up the subject so the court has all the facts. So your lawyer gets to ask you questions about this subject because it is ground not previously covered.
The other side can then “re-cross” you. Again the limit is what you spoke about in re-direct. With each stage the scope of the questioning is limited to the prior set of questions. Once the sponge called the witness has been thoroughly wrung out, it’s time for a new witness. The same rules apply for all witnesses. It can be very annoying to be a party. Direct examination of a key witness (usually one of the two spouses) can go on for hours or even days. That means you have to wait and wait for your lawyer to get a chance to cross examine your lying spouse. It will be even longer until you get the chance to set the record straight with your own testimony. Sorry. The rules are that the plaintiff gets to present his or her entire case before the defendant gets a chance to go forward. Some see that as a big disadvantage. All of that testimony goes unrebutted except for cross examination until it comes time for the defendant to present. But, remember, much as one party see advantage in being the first to present, the other party may see it as an advantage to be the last to present.
The defendant presents his or her case in the same way as the plaintiff. Direct examination of the witnesses followed by cross examination and then re-direct and re-cross. Until the defense sponge is wrung dry just as the plaintiff’s was.
Is it then over? Not quite. Suppose subjects come up in the defendant’s case that the plaintiff never discussed when he presented his case. The plaintiff is given a chance to rebut what the defendant presents. Again, this is not a chance to rehash testimony already given. Rebuttal is limited to subjects that have not been fully explored.
Equitable distribution proceedings can be unwieldy because people own lots of assets and many of them (stock options, timeshares, nonqualified retirement plans etc) are complicated. All too often clients don’t really understand these assets as well as they should and that can make proceedings both long and frustrating. We have had witnesses with advanced education degrees confounded when asked what is reflected on their paystubs. The key is to understand the process but, perhaps just as important, to understand the assets and the income that are unique to your case.
In these proceedings both sides are supposed to share their exhibits with the other side in advance of the trial. It is usually productive to sit down with your attorneys in the days before complex hearings to review what you will have to tell the court and to try to anticipate how the other side will respond.
