If a complete resolution on every issue in dispute cannot be reached, then a trial becomes necessary. Trial requires intense planning and preparation, commencing months in advance. And trials involve risk — the parties surrender their decision-making authority to the judge. There is no way to predict how a judge will decide certain issues in a case.
To avoid confusion later, let us take a moment to discuss the distinction between a “hearing” and a “trial” — as they are not the same thing. A trial is a specific proceeding with trial court rules. An appeal is also a specific proceeding with appellate court rules. Both trials and appeals involve hearings. A hearing, then, may mean any number of things. Sometimes a hearing involves the presentation of evidence by the parties. In that sense, the evidentiary hearing may be commonly referred to as a trial — but it is really more of a mini-trial. If a hearing is conducted, and neither party presents evidence, then the hearing does not resemble a real trial at all. In the family law context, many, if not most, hearings are held on motions that raise issues of law, not fact, and so do not involve the presentation of evidence.
Regardless of whether the case involves one non-evidentiary hearing, a number of preliminary hearings, or a single full-blown trial, every family law case in Arizona is heard and tried by a Superior Court judge.
The time at which the judge is present for a hearing is set by the court’s calendar, which is the judge’s case schedule and there are a lot of cases on the docket. Calendaring cases simply refers to the scheduling of events before the judge. With very congested family court dockets, the wait for a trial date can be many months. Even after you wait through the inevitable delay of getting a spot on the court calendar, there may be other delays. Therefore, the calendar is in constant flux, delays are inevitable, and patience is required.
For example, your case is on the court’s calendar, but the opposing side did not get proper notice of the hearing, so the judge agrees to continue, or postpone, the hearing until a later date which will be set on the calendar. Or your case is first on the calendar, but the judge is out sick, so your case is rescheduled. Or the judge is ready to hear the case, but the opposing party’s most important witness is unavoidably unavailable on the day of trial, so the trial is postponed and rescheduled.
A trial may involve a determination of child custody or parenting time, child support, an equitable division of community property and the division of community debts, and even the award of attorney’s fees. When you walk into the courtroom, the judge is going to observe your demeanor and how you present yourself. When you arrive at court, be dressed appropriately. Dress for this special occasion, as you would for any important event in your life. You want to impress upon the judge your seriousness about the proceedings and your respect for the court’s authority. Trial is all about preparation, so take a little time and put some thought into your proposed courtroom attire.
There is a specific procedure that is followed in a trial. First, your attorney and opposing counsel will outline the parties’ respective positions for the judge, with the Petitioner proceeding first. Each party carries the burden of proving their respective claims by a preponderance of the evidence. The rules of evidence are too complex for the purposes of this discussion, but do understand that evidence is admitted and witnesses are called.
Each party will present witnesses and evidence. Witnesses are questioned on direct, first, and then cross-examined by the opposing party. When the attorney for the Petitioner is finished questioning a witness, the Respondent’s attorney has the opportunity to cross-examine the witness on the testimony he or she just gave. The Petitioner examines witnesses directly, presents other evidence, and then “rests.” It is then the Respondent’s attorney who presents witnesses and evidence, asking questions on direct examination. Petitioner’s attorney has an opportunity to cross-examine those witnesses. After which the Respondent’s attorney, finished with examination of witnesses and presentation of evidence, also rests.
The evidence, in both oral and non-oral forms, is presented through witnesses who are put under oath. The attorneys representing the parties do not testify in a case, the lawyers merely facilitate the presentation of testimony from the witnesses. If deemed necessary to assure the presence of a witness or to compel the production of documents at trial, subpoenas are issued to procure witnesses’ appearances in court and, if applicable, the production of documentary evidence by use of a subpoena duces tecum. Any person who fails to obey a subpoena that has been served on him or her may be punished, or sanctioned, by the court.
During your testimony, when either attorney “objects” to a question posed to you, then immediately stop speaking until the judge has ruled on the objection. On the one hand, if the judge says “sustained,” then the judge agrees with the objection and the question is not allowed — you do not have to answer the question. On the other hand, if the judge says “overruled,” then the judge disagrees with the objection and the question is permitted — you must answer the question. The judge may also ask questions of you directly, so be prepared for that as well.
When you are called as a witness, listen carefully to the questions, do not argue or debate, and speak clearly and loud enough for the court microphone to pick up your voice. When opposing counsel asks you questions, be truthful and honest in your answer. You may dislike the other attorney, but do not project your animosity by being an obnoxious, rude, or stubborn witness. The judge will observe this happening and it may be detrimental to your testimony. The best way to avoid the problem is to directly, honestly, answer the question asked and nothing more. Opposing counsel may also limit your ability to explain your answers, asking you for a simple “yes” or “no” answer without explanation, context, or additional detail. Answer the questions you are asked. Be assured that your attorney will have the opportunity to ask you important follow up questions, so you may elaborate on answers that you already gave.
Once all the witnesses have testified and the evidence has been submitted, each attorney will provide a brief closing argument to the judge. The closing arguments organize the admitted evidence into an understandable persuasive summary, to help the judge make a decision. The judge will ask the attorneys legal questions applicable to the case. Once closing arguments are in, that concludes the presentation from the parties and the case is submitted to the judge for a decision. The judge’s ruling may come at the conclusion of the trial, but more often than not the judge will take more time to review all the evidence in chambers before rendering a final decision. In custody cases and complex property, asset, and alimony cases, it is not unusual for the judge to take the case under advisement and issue a ruling at a later time.
If a party disagrees with the judge’s trial decision, then the party may exercise the right to appeal that decision. Success on appeal, however, is usually limited to cases in which the judge clearly reached a decision that was not supported by the evidence adduced at trial, or when there is newly discovered evidence. The judge’s trial decision will not be overturned unless it can be clearly shown that an abuse of judicial discretion occurred. Consequently, most trial decisions are final.