I JUST WANT TO TALK TO THE JUDGE ABOUT MY DIVORCE, CHILD CUSTODY, PATERNITY, DOMESTIC VIOLENCE CASE
This guide will examine and address one of the most commonly asked questions that I hear on a daily basis in my practice of family law; that question being I JUST WANT TO TALK TO THE JUDGE ABOUT MY DIVORCE, CHILD CUSTODY, PATERNITY, DOMESTIC VIOLENCE, CHILD SUPPORT CASE, ETC.
TALKING TO THE JUDGE- MOSTLY A MYTH UNLESS YOU ARE AT TRIAL OR HAVING AN EVIDENTIIARY HEARINGAs noted above, I consistently hear clients and pro se litigants say " I just wanna talk to the Judge". Here, is where we have to debunk various myths that exist as to why and how judges get to talk to litigants or not. First and foremost, unlike television, litigants, even lawyers, in a family law case don't just walk into a courtroom or the judge's chambers and have a "fireside chat". There are ethical rules that restrict the judge from having a private conversation with the judge without the other party being present and procedural rules as to how parties get to address disputes. These rules are put in place to protect the due process rights of everyone in the litigation, i.e. your fair date in court. So, the question is "how do you get the judge to hear your side of the story". The next section of this guide will address those issues.
EMERGENCY MOTIONS FOR TEMPORARY CUSTODY, CHILD SUPPORT, ALIMONY, ATTORNEYS FEES, DOMESTIC VIOLENCEEmergency motions are sometimes necessary in child custody, divorce matters and paternity cases. Firstly, you must understand that our courts are overly burdened. In Martin County, there is one Judge whom handles initial actions (first time in court in a divorce case for example) and one Magistrate. Magistrates typically handle post-judgment actions unless an objection is filed, in which case the matter must be heard by the Family Law Judge. So, because the Courts are so overburdened, the Judges cannot hear every emergency motion that gets filed by one party or the other. Even though I may consider a matter to be of an emergency nature and file a motion with the Court regarding that emergency, there is an outside chance that the Court will regard the motion as an emergency. Typically, after filing an emergency motion, we will get an order from the Court stating that the matter is not an emergency and to set the matter for a hearing in the "normal course". So, what does the "normal course" mean? What it means is that the judge is not going to hear the motion until the parties have first gone to mediation. The judges know that 70% to 80% of the cases will resolve at mediation. Thus, in order to control their very heavy case load, the judges require that cases must go to mediation first before you ever get to see a judge. The mediation requirement often imposes a very long delay in the administration of justice. Therefore, in these situations, I typically advise my client to go to a quick mediation with the hope of settling the matter, but, with the understanding that if we are unsuccessful at mediation, we can them move forward with the setting of a temporary relief hearing. Now, let's say that the judge determines that the matter is of an emergency nature. In this situation, the judge will typically set the matter for a hearing of 1-3 hours at best. These days, I am seeing extremely complex matters set for a 1 hour hearing. This presents a huge problem because witnesses must typically be subpoenaed on an emergency basis and evidence must be collected and ready to be introduced into evidence. Police officer witnesses present a particular challenge because they be accorded 5 days notice under their own procedures that they have put into place. In essence, you and your attorney must be ready to move forward very quickly to present the facts and the evidence in a way that complies with the rules of evidence. For example, many people believe that police reports automatically are admitted into evidence since they are written by police officers. WRONG!!!. Police reports are, by definition, hearsay evidence. Thus, the police officer(s) who witnessed the acts and spoke to both sides must be subpoenaed. Now, a special note about domestic violence injunctions. These types of matters are put on a "rocket docket" so to speak. Whether you are the person seeking an injunction or a defending one, these matters will be set for a very quick hearing/trial. Depending upon the facts, evidence and the availability of witnesses, you have to make a quick decision as to whether to proceed on that date or seek a continuance of the hearing.
ACTUALLY TALKING TO THE JUDGE- WHAT DOES THAT MEAN?As I said earlier, nobody simply "talks" to the Judge. The Judge can only hear matters that have properly been set for hearing. At the hearing, both parties will be given an opportunity to put on their evidence and make argument regarding the relief that has been requested. The putting on of evidence is highly technical and takes most attorneys 10+ years of practice to master. A WARNING TO PRO SE LITIGANTS. DO NOT THINK THAT THE JUDGE IS THERE TO HELP YOU PUT ON YOUR CASE!!! The judge is not there to help you. The judge is there to hear the evidence, decide what things will or will not be entered into evidence and then to make a decision based upon the evidence that was admitted as applied to the law. Typically, you, as a litigant in the case, will only testify in motions or hearings which are evidentiary in nature or at a trial, which is by its very nature an evidentiary matter. But, you will typically never be given the opportunity to simply "talk to the Judge". You, and your attorney must be prepared for every hearing with what I call a "Trial/Hearing Notebook". In that notebook, each and every pertinent paper or pleading filed in the case is included. Each and every piece of evidence is included. A Trial Outline that goes through each witness's testimony is prepared and linked up to any exhibits that are part of that witness's testimony. We typically make 4 trial notebooks, one for us, one for the other side, one for the Clerk and one for the Judge. Now, we understand what "talking to the Judge" actually means. It requires time, preparation and the proper presentation of the evidence.
A special note to those folks whom are prosecuting or defending a domestic violence injunction. If there is a possible criminal action, filed or not filed, be advised that what you say at the hearing is being recorded. Thus, your words at that hearing can be used against you in a possible criminal action. In some cases, it may be better for you not to speak at all. Many times, I don't need your testimony as I can either suppress certain evidence or cross examine other witnesses or put on evidence from 3rd parties that will adequately defend your interests.