What to Expect on Court Day

Getting Ready

The night before you go to court you should get to bed early and get plenty of sleep. For obvious reasons, court can be a stressful and tiring experience. So, it is important that you come to court completely rested and ready to participate in the proceedings with a clear head.

If you have not been to the courthouse before, be sure you know how to get there. If you are unsure of the location of the courthouse, parking facilities or the courtroom, please contact our office. You might also consider writing down directions to the courthouse the night before.

Determine how long it will take you to drive to court, and then increase that time by 50% to account for rush hour traffic and any other unforeseeable delays you might encounter. For example, if you estimate it will take you 30 minutes to get to court, plan on leaving home at least 45 minutes before you are to be there.

Make sure that you have completed your court preparation on the night before your court date. By doing this, you will avoid rushing around the following morning. You should assemble any documents that I have asked you to bring with you. Lay out your clothes for the next day and, in general, have everything ready to go for when you get up.

Arriving at Court

When you get to the courthouse, go directly to the courtroom where your matter is schedule to be heard.

Most courthouses now have metal detectors at the front door. Make sure you are not carrying anything that might be considered a weapon, such as a pocket knife.

In Travis County, a list of the day's cases will be posted on a bulletin board by the elevators. Find your case on the docket and go to the courtroom assigned. If your case is "unassigned", look at the bottom of the page to see where "unassigned" cases should report.

If you do not see your name on the calendar and cannot find me, go to the District Clerk's Office on the 3rd floor or the Information Desk on the 1st floor by the elevators and ask where you should go. If after talking to those persons you still do not know where you are to be, go to the nearest telephone and call my office for instructions.

Court Personnel

Besides the judge, there are usually three other people in most courtroom:

The Bailiff
The bailiff is an officer who is assigned to assist in the operation of the courtroom. He or she is usually the first person you talk to when you enter the courtroom. Bailiffs do not wear peace officer uniforms, but they generally make themselves known as the person in charge of "order" in the courtroom.

The bailiff has various functions in the courtroom. Primary among this is the job of maintain order. This applies to anything from asking people to stop talking while court is in session to physically subduing people who become violent. The bailiff is also the person who handles the jury during jury trials.

The Court Clerk
The court clerk is the man or woman who is responsible for the management of the court's paperwork. In the morning, before court starts, the clerk gets all of the files for the day from the clerk's office and gives them to the judge.

When court is in session the clerk administers the oath to all witnesses, hands documents and exhibits to the judge and generally serves as the judge's clerical assistant.

The Court Reporter
As depicted in numerous theatrical courtroom scenes, the court reporter records everything that is said while court is in session, using a silent recording machine and a tape recorder. After your hearing is completed, the other attorney or I may request the court reporter to prepare a transcript of the proceedings. This a verbatim script of everything that was said by the judge, attorneys and parties. 

Associate Judges
Many family law courts are presided over by a "associate judges" instead of a district judge. There are only differences between an associate judge and a district judge: The first is that a district judge is an elected official and an associate judge is not, and the second is that associate judges only hear family law cases and district judges hear all kinds of civil matters.

Parties can object to their case being heard before an associate judge and demand that their case be heard before a district judge. However, since the associate judges only hear family law cases and receive special training in family law, and the district judges do not, this is generally not the best course of action. Also, although both dockets are overly booked, the district judges docket is usually worse and therefore, you'd have to wait longer to have your case heard.

Docket Call

After taking the bench the first thing the judge does is call through the docket. The purpose of this is to enable the judge to determine how many cases are actually going to be heard and how long each one will take. With this information, the judge can plan the sequence of the hearings.

When the docket is called the judge simply calls each case in the order in which they were set and asks the attorneys or people who are representing themselves how long they estimate it will take to have the case heard. If different hearing times are given, the judge will usually take the long estimate so that each party will have as much time as possible.

During the docket call there may be one or more cases that are not ready to be heard, either because one of the attorneys has not arrived or because the attorneys are negotiating the case in the hallway. When this happens, the case is put on "recall." This means that the judge will call the case later in the morning.

When the docket call is completed, the judge has a list of cases that are ready to be heard. The judge will then assign the cases to available judges in the order in which they were set and announced "ready."

Hearings or Pretrial Matters

Review of Pleadings
Court rules require the attorneys to file their papers ("pleadings") before the hearing date. This gives the judge and the attorneys an opportunity to know what each side is going to ask the judge to do.

Prior to a hearing for Temporary Orders, each side must prepare a Budget and Expense Statement to share with the court and opposing counsel on the day of the hearing. Prior to a final hearing, each side must prepare pretrial forms that specifically set out the party's requested relief from the court, with a Budget and Expense Statement. Pretrial forms must be submitted to the court two weeks prior to a final hearing date.

Mediation

If a case is set for final hearing and ask for 3 hours or more of the court's time, the court requires that the parties mediate their case ahead of time and must file a statement with the court a week prior to the final setting that they have complied with this mediation requirement.

Stating of Appearances

When your case is called by the judge, both attorneys and the clients (the "parties") step forward and take their places at the counsel table. Usually the attorneys sit on the inside chairs and the clients sit in the chairs at opposite ends of the table. The Attorneys will first state their "appearances for the record." For example, I would say, "Daryl Weinman for Petitioner, Jane Jones, who is present."

Administering the Oath

Before anything takes place the clerk will administer the following oath to both parties by instructing them to raise their right hands. The clerk will then ask: "Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?" In a clear and audible voice, both parties are required to say "I do."

You should understand that your testimony is being given under penalty of perjury. This means that you can be charged with and convicted of a crime if you knowingly tell a lie when you testify.

Opening Statements

The judge will then ask the attorneys to make a brief statement of the facts and state the relief requested by each party.

Testimony

Once the preliminaries are completed the actual hearing or trial begins. The Petitioner (or Movant, depending on the type of hearing) puts on their case first.

Direct Examination

The hearing begins with Petitioner's attorney calling his or her witnesses first. Sometimes the first witness is the Petitioner, sometimes it is the Respondent and sometimes it is someone else - it is a strategic decision of the attorney.

When questioning his or her own client or a "friendly" witness, the questioning is called direct examination. During direct examination the attorney will ask questions that will enable the judge to understand his or her client's position. In most cases the attorney will have previously discussed direct testimony with the client and witnesses, so the questions should not come as a surprise.

Rules of Evidence in Direct Examination

In conducting direct examination, there are certain rules of evidence that must be followed. The most common rule is that any question must be "relevant" to the subject matter. For example, if the only contested issue is child support, a question about the client's political affiliation would be irrelevant and, therefore, objectionable.

A question cannot call for "hearsay" testimony. Hearsay is anything said by another person who is not present in court. The question is objectionable if the answer to the question is being offered for its truth. An example of a question that is objectionable under the hearsay rule is the following: Mrs. Smith, did Mr. Smith's employer tell you how much Mr. Smith is being paid?" The only way this information can be presented to the judge is to actually subpoena the employer to come to court or to subpoena the employer's records.

Another important rule of evidence in direct examination is that the question must not "lead" the witness. A leading question is one that suggests the answer. For example, where the issue is spousal support, it would be improper for the wife's attorney to ask the wife, "You haven't had a job for twenty years, have you, Mrs. Smith?" Instead, the attorney should ask, "When is the last time you had a job?" If the attorney has properly prepared the wife for her direct testimony, she should quickly answer, "Twenty years ago."

Cross-Examination

After direct examination is completed the other attorney is permitted to cross-examine the witness. Cross-examination gives the other attorney an opportunity to test the credibility of the witness and, on occasion, show the weaknesses in the other party's case.

In cross-examination the attorney asking the questions is limited to the scope of the questions asked on direct examination. Thus, if the direct examination was limited to question concerning child support, the attorney conducting cross-examination cannot ask questions about community property.

Rules of Evidence in Cross-Examination

The attorney asking questions on cross-examination must also follow the rules of evidence, but some flexibility is allowed. For example, leading questions, which are not allowed in direct examination, are permitted in cross-examination. However, the rules of relevance and hearsay must still be followed.

During cross-examination, the attorney is not permitted to pose questions that are "argumentative." For example, an improper question would be, "Mr. Smith, are you seriously asking the court to believe that you can't find a job?" These types of questions may be common in courtroom scenes on television, but they are not allowed in real hearing and trials.

Further Examinations

After the completion of cross-examination, the attorney who called the witness is permitted to conduct "re-direct examination." These questions must be limited to the subject matter of the cross-examination.

An attorney will ordinarily conduct re-direct examination if his or her witness said something inaccurate or misleading while being cross-examined. For instance, where the issue is child custody, under cross-examination the following question and answer might take place: Question: Isn't it true that you leave your child home alone? Answer: Yes, it is.

If the parent's attorney knows that his client does not actually leave the child home alone, he might ask the following question during re-direct examination: Question: When you were being cross-examined, you said you leave your child home alone. Isn't that true? Answer: Well, not exactly. Question: What did you intend to say? Answer: Sometimes I leave my child home alone with her 16 year-old sister. After re-direct examination is completed, the other attorney can ask more questions in "re-cross examination," in which the scope of questions is limited to the scope of the re-direct examination.

General Rules for Testimony

Regardless of which attorney is conducting the examination, there are several rules that you should follow when you are testifying:

• Listen carefully to the question that you are being asked.
• Do not guess at the answer to a question. Instead of guessing, simply say that you do not know or do not remember the information requested. However, you may estimate an answer, such as an approximate date or amount of money.
• Wait until the question has been completed before you start to give your answer. This is important for several reasons:
  • If you prematurely answer a question you might give the cross-examining attorney some information that he or she had not thought of asking.
  • The court reporter can only record one person talking at a time. So, if you start talking while the attorney is asking the question, the court reporter may not be able to keep a clear record of the proceedings.
  • If the other attorney questioning you and Mr. Rabenn wishes to object, he will not have any opportunity to make the objection if you answer immediately.
• State your answers clearly. If the question asks for yes or no answer say "yes" or "no," instead of "uh huh" or "uh uh."
• Answer only the question that is asked. Never go beyond the scope of the question.
• Pause a few moments after the question has been asked before you start talking. This will give you time to think about the question and formulate your answer. It will also give your attorney time to make appropriate objections to the judge.
• Stop talking if the judge or either of the attorneys starts to talk.
• If you feel physically or emotionally unable to continue with the examination you should make that fact known to the judge immediately.

Documentary Evidence

A judge decides the case by applying the law to the facts of the case. The facts are based on the evidence that is present to the judge during the trial. Evidence is usually presented in two forms: oral testimony and documents. When an attorney wishes to present documentary evidence there are several steps that must be followed:

Marking of Exhibits

The first this the attorney does is to request that the clerk "mark" the document as an exhibit. This involves assigning a number or letter to the document so that it can be easily identified whiled the trial is in progress.

When an attorney wants to have an exhibit marked, he or she says, "Your honor, I would like this [letter, contract, etc.] marked as Petitioner's Exhibit 1." If there are going to be a significant number of exhibits presented, the judge will want the attorneys to have the exhibits marked before the trial starts. This avoids using court time to mark exhibits.

Foundation

Marking an exhibit does not guarantee that the judge will allow it to be "received." Before that happens, the attorney must first establish the "foundation" for the receipt of the document. "Laying a foundation" is the process by which the attorney submitting a document shows the judge that it is authentic.

In dissolution cases it is common for a spouse's payroll records to be subpoenaed to court. Before the judge can consider such records, the attorney submitting them must first have the spouse's employer testify that the document is true and correct. Once this is done, the records will be received as evidence.

Admission of Evidence

Once the foundation has been properly laid, the propounding attorney will ask, "Your honor, I am requesting that Petitioner's Exhibit 1 be admitted into evidence." Before the judge receives an exhibit, the other attorney will be asked if there are any objections to the document. As with oral testimony, there are many grounds for objecting to the receipt of documentary evidence, such as relevancy or hearsay.

Respondent's or Responding Party's Case

After the Petitioner or Movant has presented all of his or her evidence, that party's attorney will say, "Your honor, Petitioner rests." It is then time for the other party's attorney to present his or her case. The same procedures and rules discussed above are followed during the presentation of the other party's case.

Rebuttal

When the responding party or the Respondent has finished his or her case, the trial is not necessarily over. The first party's attorney now has the right to call "rebuttal" witnesses to contract the other party's evidence. The most common rebuttal witness is the other party, but any witness can be called for rebuttal purposes.

Closing Arguments

Once the testimony stage of the trial s completed it is time for the attorneys to make their "closing arguments" to the judge. In the closing argument each attorney summarizes the important points of the case and tells the judge why his or her client should win on the various issues involved in the case. In their closing arguments the attorneys will often refer to statutes or relevant appellate court decisions that are relevant to the case.

After the arguments are completed the judge can either announce the decision orally in open court or take the matter "under advisement." This means that the judge is going to think the case over and issue a written decision within a few weeks.

Completion of the Hearing or Trial

Because of the staggering number of dissolution cases that are being filed, family law courts are becoming overburdened with cases. This means that even if your case is on the docket for a particular day, there is no guarantee that will be completed, or even started, on that day. So, if your trial is set on a Tuesday, you should make sure you and your witnesses will be available on Tuesday, Wednesday and Thursday of that week, because your case may not begin on Tuesday morning.

Portions excerpted from "Your Day in Court" by Glen L. Rabenn, Seal Beach, CA: www.divorcenet.com/ca/rabenn

Morehart & Weinman

812 San Antonio Street, Suite G-20
Austin, TX 78701
(512) 472-4040
Fax: (512) 472-4086
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At Morehart & Weinman in Austin, family law attorney Daryl Weinman helps Texas clients throughout Travis County and Williamson County in communities such as Austin, and Georgetown.