Pre-trial memorandum, how do I fill one out if I don't know what's contested?

Asked almost 2 years ago - Salem, MA

Despite my efforts, I never met with my ex or her attorney to discuss the settlement of our divorce. I spoke with her attorney on the phone once about my issues with the draft (which I never signed), but he has not gotten back to me with whether or not we can compromise on any of the issues. The pre-trial hearing is this week. How do I fill out a memorandum when I still don't know what is contested?

Attorney answers (7)

  1. Philip W. Mason

    Pro

    Contributor Level 18

    7

    Lawyers agree

    1

    Answered . The pre-trial memo in conjunction with the pre-trial conference is a great opportunity to present your case to the judge in its best light. Often judges will strongly suggest settlements (giving recommendations) during the conference based upon the presentations made by the parties. A good memo can sway the judge and help settle a case without trial. Take it seriously.

    While courts encourage the pre-trial memo be published jointly between the parties, this seldom occurs and you can submit yours unilaterally. Of course, you will have to serve the court and the other party a copy in a timely manner.

    The basic structure of a pre-trial memo is:

    Uncontested Facts (general background if there is no agreement)
    Contested Facts (issues for the court)
    Attempts to Settle (communication with other party trying to settle – point out they have refused)
    Discovery (has all mandatory and requested info been exchanged – if not suggest a schedule)
    Witnesses (who will to testify – include yourself – reserve right to add at a later date)
    Exhibits (what will you introduce as evidence other than witnesses – ex. Financial statements, tax returns, children’s grades, doctor reports, etc.)
    Time for Trial (how long do you expect the trial to last)
    Proposed Judgment (what would you like the court to order)

    Keep it simple and to the point – number each assertion – persuasiveness should be in the facts and the law, not in the prose

    This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an... more
  2. Joshua N Robbins

    Pro

    Contributor Level 16

    6

    Lawyers agree

    Answered . Everything is contested until there is a formal agreement. I suggest that you retain counsel so that you are not at a disadvantage. A Pre-Trial Memorandum is extremely important and you are working at a disadvantage by not coordinating with an attorney.

    I wish you all the best.

    LEGAL DISCLAIMER: I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Waltham.... more
  3. Adam William Vella

    Contributor Level 11

    5

    Lawyers agree

    Answered . Since it sounds like you're Pro Se, you should attempt to contact your husband's attorney again. It is a requirement that you all meet to discuss the action prior to the pretrial hearing. If you are still unable to meet, write your memo indicating this, indicate all issues that you believe you are at odds over, list any outstanding discovery items that are unresolved, and how long you believe a trial will last given the nature of evidence and witnesses you would call (usually 1-2 days tops).

    I would highly recommend obtaining counsel to aide you in these tasks. You can also obtain limited representation from certain qualified attorneys who can hired to only write the memo or appear at the hearing with you.

    Good luck!

    Will Vella, Esq.
    will.vella@juristicata.com
    617-500-6616

    A. Will Vella is an Massachusetts licensed attorney who focuses his practice on small business, family issues, and... more
  4. Elliot S Coren

    Contributor Level 11

    5

    Lawyers agree

    Answered . List in your memorandum the issues you believe need attention and how you want each issue resolved. Issues could be custody, visitation, alimony, dividing assets, etc.. I assume you are not represented by counsel. If there are assets or children, it would be better to hire counsel. Good luck.


    Steve Coren

    This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is... more
  5. Henry Lebensbaum

    Contributor Level 20

    4

    Lawyers agree

    Answered . I think you posted this question before. Go down to the local law Library. There are demos for all pretrial conference forms. In that form, you can note that you tried to have a four-way conference or three-way conference and the other attorney never contacted you.

    henry lebensbaum esq 300 Brickstone Sq Ste 201 andover, ma -- attorneylebensbaum@verizon.net (978) 749-3606.
    Criminal Law (all courts), Drunk Driving, Drugs, Violence, Sex Offenses, theft, SORB, Divorce Child Custody Alimony Child Support & Modification, Contempts & Paternity Juveniles Domestic Violence & Restraining Orders, Business Law, Personal Injury, Guardianship, Conservatorship & Estate Administration & Legal Malpractice. For these & other areas, contact me. Email sent may be copied intercepted or held by computers.

    Criminal Law (all misdemeanor & felonies in District and Superior Courts), Drunk Driving and Drug arrests, Sex... more
  6. Phil A. Taylor

    Contributor Level 14

    4

    Lawyers agree

    Answered . The pretrial memorandum should follow the format set out in the order. A prior response provides a description as to what each section will include. The purpose is to let the judge know where each party stands on each issue to resolve and where there is likely come agreement.

    It is best to have something prepared. If an agreement cannot be reached, you may want to speak to the other attorney and court about being referred to a conciliator. This may help resolve some of the issues that are preventing an agreement being reached. An agreement does not need to be reached an d the matter can go forward with a trial, however, it is often best to reach an agreement and control your own fate.

    DISCLAIMER: This answer is provided in response to a "hypothetical" question and provided for general,... more
  7. Thomas J. Taranto

    Pro

    Contributor Level 5

    3

    Lawyers agree

    Answered . Your ex-wife had the foresight to hire an attorney. You need one as well.

Related Topics

Divorce

Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

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