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The Forest for the Trees - A litigator's guide on How to Stay Sane and Protect Yourself in Court

HELPING FAMILIES ACROSS COLORADO FOR MORE THAN 30 YEARS
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Trial in front of a Judge is typically the last stage of a legal matter in Family Court. Issues in Family Court typically range from everything from Divorce, Allocation of Parental Responsibility matters, Contempt, Protection Orders, or anything in between. Trial is typically broken up into several discreet components. Knowing what to expect and how to handle yourself in trial will help you get through this process.

Stages of Trial

Opening Statements. An opening statement is a presentation made by each party at the beginning of a trial. During the opening statement, the parties outline the main points of their case and provide a general overview of the evidence that they will present. The opening statement is not meant to be a detailed argument, but rather a summary of the main points of the case. In Colorado Family Courts, opening statements are rare. Most attorneys and Courts rely upon what is known as a Joint Trial Management Certificate (“JTMC”) that outlines to the courts the arguments and supporting law for the matter. If offered an Opening Statement, your attorney will decide if it is best to provide a statement, or simply note to the Court that he intends to rely upon the JTMC for the statement.

Petitioner’s Case. The filing party, commonly known as the Petitioner, will start first and call their witnesses. Each witness will start with a direct exam, cross exam, and a redirect. Some judges will allow a further cross examination.

Directed Verdict. Depending upon the nature of the matter at issue, the Respondent may ask the court to decide the merits of Petitioner’s case based upon the evidence (or lack of) and the relative law at issue. This is rare and only happens when the Petition has a particular burden to meet before proceeding.

Respondent’s Case. The responding party, commonly known as the Respondent, will start first and call their witnesses. Each witness will start with a direct exam, cross exam, a redirect, and sometimes a re-cross, the same as with the Petitioner’s case above.

Rebuttal. At the conclusion of the Petitioner’s case, they may choose present rebuttal witnesses or evidence to refute evidence presented by the Respondent. This may include only evidence not presented in the case initially, or a new witness who contradicts the defendant's witnesses.

Direct Examination

The attorney will call witnesses that supports their view of the case as part of their direct exam. The here is to establish the testimony and evidence of the witness. The lawyer conducting the examination will ask the witness a series of questions in order to elicit testimony and evidence from the witness. The lawyer may also introduce exhibits, such as documents or other physical evidence, during the direct examination. The questions asked are going to generally be open ended questions like, “Who, What, Where, When, and How” in style.

Cross Examination

Following direct examination, the layer may choose to cross-examine the witness to challenge the testimony and evidence presented during the direct examination. The purpose here is to test the credibility of the witness and the reliability of the testimony and evidence presented. The questions here are typically going to be yes or no in nature.

Redirect

A redirect examination is the questioning of a witness by the party who called the witness to testify, following a cross-examination by the opposing party. The purpose of the redirect examination is to allow the lawyer who called the witness to clarify or address any issues that were raised during the cross-examination.

Objections

At all stages of trial, the attorneys may object. This is normal and part of the process. They may object for a variety of reasons. One common reason is to challenge the admissibility of evidence that is being offered by the opposing party. In general, attorneys may object to protect the integrity of the legal process and to ensure that the trial is conducted fairly and in accordance with the law.

Tips for Trial

1. Prepare thoroughly. It is important to be well-prepared for a trial. This includes reviewing the history and your recollection of everything that preceded needing to go to court. This includes working with your attorney far in advance so that she is aware of your needs, goals, all facts pertaining to the issues.

2. Communicate with your Attorney. Make sure that you timely respond to your attorney or her paralegal. Do not wait until the last minute to provide documents or act upon requests. Waiting to just days or weeks before trial may negatively impact you.

3. Organize your materials in advance. Make sure you have all the materials you need for trial, including documents, exhibits, and other evidence. Give everything to your attorney after discussing what is and isn’t needed at the earliest possible opportunity. Do not wait until days or weeks before mediation or trial.

4. Communicate effectively. Communicating effectively during a trial is key to presenting your position. This includes speaking clearly, concisely, and being prepared in advance with your attorney. When testifying, be aware of your body language and nonverbal cues. Sit straight in your chair, keep your hands comfortably in front of you, and look at the attorney speaking with you. You may occasionally look at the Judge when answering questions, but only do so occasionally.

5. Stay focused. Trials can be long and complex, and it is important to stay focused throughout the proceedings. This includes not distracting your attorney. Try not to talk to your attorney when she is listening to the proceedings during a cross examination, instead, write a quick note and put it in front of her.

6. Be honest: It is important to tell the truth when testifying as a witness. This includes being honest about what you saw, heard, or experienced, know, and not exaggerating or embellishing your testimony.

7. Listen carefully. Pay attention to the questions being asked and make sure you understand them before answering. If you are unsure of a question, it is okay to ask for clarification.

8. Speak clearly. Speak in a clear and concise manner, and make sure your voice is loud enough to be heard in the courtroom. Make sure to move the microphone close to you if you have a quiet voice.

9. Use examples. If you are asked to describe an event or situation, it can be helpful to use specific examples to illustrate your point. This can help make your testimony more concrete and easier for the judge to understand.

10. Stay calm. It is natural to feel nervous when testifying, but it is important to stay calm and composed. Take deep breaths, speak slowly, and try to relax. If you feel overwhelmed, it is okay to take your time in answering. If needed, have a glass or bottle of water available so that you can take a sip to collect your thoughts when answering questions.

11. Dress appropriately. Dress appropriately for court. This generally means wearing professional or business attire, such as a suit or dress pants and a dress shirt. Avoid wearing clothing that is too casual or that may be distracting. Note also, don’t wear clothing you’re not comfortable in.

12. Take your time. It is okay to take a moment to think before answering a question. This can help you give a thoughtful and accurate response.

Conclusion

Legal proceedings in a family court setting may be a stressful and emotional experience, particularly if these issues are sensitive or highly contested. It is important to work with an experienced attorney who can advise you on the specific laws and procedures that apply to your case and help you navigate the legal process.

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