VIII. GOING TO TRIAL IN A CIVIL
CASE
A. What is evidence?
Evidence is testimony, documents, physical objects,
or other items offered to and accepted by a court to prove facts
relevant to a case. Some examples might be an expert's opinion,
a witness's testimony, medical records or photographs. The admissibility
of evidence is a very significant and complex area of the law.
There are many laws and rules that the judge must consider in
determining what can be admitted into evidence. The court may
not accept everything that you think would help your case.
Hearsay It
is common to object to written or spoken statements
made outside the courtroom on the grounds that
they are "hearsay." Statements that
follow "he told me" or "she said" might
be hearsay.
Hearsay evidence is not admissible
in court unless it falls under one of many exceptions
to the rules about hearsay evidence. Figuring
out if certain hearsay evidence might be admissible
is difficult and requires a sophisticated knowledge
of the law and rules that apply.
Ultimately, it is the judge who
will determine what is admissible.
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B. What is testimony and how do I present
it?
Testimony is the statement of a witness under oath
about things the witness has seen, heard, or otherwise observed.
In most instances, witness testimony is presented in a question
and answer format.
Your Witness: Questioning your
own witness is called direct examination. The purpose of direct
examination is to use your witness to speak about facts that
support your case. This is done by asking questions that draw
out information about what the witness saw, heard or observed.
Expert Witness: You may want
to present a witness who is an expert in a particular subject
that is important to your case. The rules and laws on who qualifies
as an expert and how that person's testimony might get admitted
into evidence are complex. It is up to the judge to determine
if your witness is an expert and whether his or her testimony
is admissible.
The Other Party's Witness: When
one party questions the other party's witness, it is called
cross-examination. During cross-examination, the opposing party
can ask questions that require a "yes" or "no" answer.
These are called "leading questions" and do not allow
the witness the opportunity to explain the answer.
Yourself as Witness: As a party
to the case, you may testify at the trial in support of your
own case. If you are representing yourself, you will need to
decide how you will present your own testimony. You should
ask the judge for his or her preference on how to present your
testimony under these circumstances.
Objection An
objection is a way to call the court's attention
to the objecting party's challenge to the admissibility
of evidence offered by another party. Either
side can object to the admission of items or
statements into evidence. The judge might ask
and you should be prepared to explain the basis
for your objection.
After an objection is made and
the reasons for it are given, the judge will
typically "overrule" or "sustain" the
objection. If the objection is overruled, it
means the evidence is admitted. If the objection
is sustained, it means the judge agrees that
the proposed evidence is improper.
If you are questioning a witness
and the other side objects, stop and wait for
the judge to rule on the objection.
If you are representing yourself
in court, you will be required to know the laws
and rules that apply to the introduction and
admissibility of evidence. It is important to
learn when to make an objection. If you don't
object at the right time, you could lose your
right to challenge the admissibility of the evidence
at a later point in the proceedings or on appeal.
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ALERT!
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Write down
your questions for each witness before going
to court to be sure you cover everything.
-
Don't
argue with a witness. Be respectful, don't
interrupt and don't yell.
-
When the
witness gets on the stand, ask your questions
and listen carefully to the answers. This
is not the time for you to give a speech.
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C. How can I get documents into evidence?
You may have documents supporting your side of
the story that you want to admit into evidence. As with other
forms of evidence, there are rules and laws that you must follow
to have documents admitted as evidence. Be aware that if you
want to offer a document in court, typically you will not be
able to do so unless you have provided the other side with a
copy ahead of time. Likewise, you should expect that the other
side will provide you with copies.
Court rules are strict about what kinds of documents
will be admitted into evidence as part of your case. Ultimately,
the judge decides what becomes evidence. If you disagree with
the judge's decision, you may object. Always remain respectful.
Know the applicable rules and law before trying to admit documents
into evidence.
D. What kinds of decisions might the court
make in my case?
What type of decision or decisions the court will
make in your civil case depends upon the particulars of your
individual case. In the course of a typical civil case, there
may be a number of different decisions made.
These might include:
Ex Parte Orders: An ex parte order
is a temporary order entered by a judge without notice to the
other side, usually on an emergency basis. An ex parte order
is usually valid until the other side has an opportunity to present
his or her version of the story to the court. Some examples of
this are a request for protection from abuse, typically referred
to as a "209A order," a request to prevent the sale
of property which is the subject of a dispute, or a guardianship
for an incompetent person.
Temporary Orders and Preliminary Injunctions: Temporary
orders and preliminary injunctions are decisions which tell the
parties what to do or what not to do until a final decision ends
the case. For example, one parent may be granted temporary custody
of a child until a final hearing is held. Once there is a final
judgment, temporary orders are no longer in effect.
Rulings on Motions: A motion is
a request to the court for an order or decision in favor of the
person filing the motion. Motions can address a wide variety
of issues. Courts make decisions on motions throughout the course
of a case. Sometimes a decision is made after the parties argue
before the judge and sometimes the decision is made based on
a written motion and opposition.
Judgments: A judgment is the final
decision of the court, and is almost always issued in writing.
A written judgment is sometimes accompanied by a written discussion
of the facts and law explaining the court's decision.
E. How long will my case take?
Many of us watch crime and legal dramas on television.
On these programs, the crime is almost always solved or the legal
issue settled in the course of an hour or two. Watching television
can lead some people to have unrealistic ideas about how long
a typical case will take. In fact, a typical case may take a
year or more to be completed. You should not expect to walk into
the courthouse and get your issue resolved that day.
F. What if my case is an emergency?
In certain emergency cases, you may be able to
go before a judge the same day you go to the courthouse. For
example, you might need a restraining order seeking protection
from abuse, an emergency guardianship for a child or an incompetent
adult, an order to stop someone from selling property, or an
order related to some other kind of emergency.
Typically in emergency cases, you will receive
only a temporary order. A temporary order is put in place to
protect you or another person until the other party can be notified
and a more complete hearing can be held.
ALERT!
SOME THINGS THE
COURT MIGHT REQUIRE YOU TO DO
The
judge may ask you to do a number of things for
your trial, such as:
-
provide
a list of witnesses
-
pre-mark
exhibits
-
write a
memorandum of law
-
draft proposed
findings of fact
-
draft proposed
rulings of law
-
draft a
proposed order or judgment
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Ruling from the Bench The
judge may make a ruling or decision while both
parties are still present in the courtroom. This
is called "ruling from the bench."
Under Advisement The
judge may want to delay announcement of the decision
for a variety of reasons or may want more time
to consider the evidence and the law before issuing
a written decision. This is called "taking
the matter under advisement."
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