How to Represent Yourself in Maricopa Family Court
Part 4: Negotiations, Trial Preparation, Trial Presentation
In Part 1, we discuss what to do prior to filing your family court action, determining your objectives and strategy, how to draft your initial pleadings, how to respond, and whether to request a motion for temporary orders.
In Part 2, we covered how to represent yourself in Default Proceedings and through Discovery.
Part 3 covered the RMC, ERC, ADR, Return Hearings and Status Conferences.
Here, in Part 4 of How to Represent Yourself in Maricopa Family Court, we will wrap up the series by covering negotiations, trial preparation and trial presentation.
Whole books have been written about negotiations. While we can’t get into an in depth discussion about the art of negotiation here, it is important to know about negotiations when representing yourself. Statistically, two unrepresented individuals are actually MORE likely to settle than if you have attorneys involved in your case. It’s hard to know whether that is because the “stronger” party pushes their way into a settlement or because self represented individuals are better at negotiations.
When entered into negotiations, there are a few things to keep in mind. Think back to your initial objectives (we discussed this in Part 1). Remember what is most important to you, and try to focus as much as possible on what is important and block out the little jabs or disrespect you might be feeling from the other party.
Turn on the charm. Try to be kind and patient, and avoid all snipes, snarky comments, or jabs towards the opposing party. We suggest using a mediator to help the two of you stay focused on what is important: achieving your objectives.
Attorneys Fee and Sanctions
It is important to make attempts at negotiations while you are self-representing in family court, because attorneys fees, or sanctions, are awarded based on two factors 1) Disparity of income (does one party make a lot more money than the other?) and 2) Unreasonableness of the parties.
Most often, Judges find non-disclosure and an unwillingness to negotiate will constitute unreasonableness, which may result in you paying the other person’s attorney fees. Most often, you are better off writing settlement proposals and responding to settlement proposals in a timely manner.
The entire process described in parts 1-3 of this series are all a part of trial preparation. In the months leading up to your final hearing you should know the strengthens and weaknesses of your case and have your evidence and witnesses prepared. You should be crystal clear by now of your position on each and every outstanding issue, and you should know where the opposing party stands.
Your Initial Research
To begin trial preparation, identify all remaining issues (such as property division, spousal maintenance, parenting time). Then further drill down into the elements of each of those issues. This requires legal information and analysis. You will need to consult the statutes, a lay legal advocate, a paralegal, a CDLP or an attorney to assist you with each portion.
For instance, if the remaining issue is property division, you need to identify exactly what property is at issue, classify the property as community or separate, and then state the particular facts for your situation that support your position. Next, you will need to identify the evidence (documents and witnesses) that supports and establishes the facts of each element of the issue.
The Pretrial Statement (Prehearing Statement)
This is a very structured way of looking at trial preparation. A good pretrial statement is arguably the most important document in your entire case. You may be ordered to submit a joint pretrial statement, or your may be able to submit separate pretrial statements. If you can spend money on an attorney for any portion of your case, this is the most important time to do so. Your pretrial statement acts as an outline for you and the judge. As an attorney, I use the pretrial statement to help me present my cases.
The pretrial statement will give a brief history, identify the outstanding issues, break down into sub-elements what must be proved under each issue, and then apply your facts and evidence to the various elements. If your case has a lot of outstanding issues, or there are many elements to each issue this could be a very lengthy analysis. Looking at your trial preparation in this way will help you to think like a judge. The judge is only concerned with applying your facts to the law; the easier you can make this, the more persuasive you will be. Your pretrial statement is submitted to the court in advance of trial and read by the judge. A judge may begin the trial with very strong opinions surrounding your case based on what is presented in the pretrial statement,so it’s important to paint the most thorough picture in the statement.
What Should You use for Witnesses and Exhibits?
Ask yourself how much time is set for the hearing. You will be allotted roughly half of the time for your presentation of evidence and cross-examination of the opposing party and witnesses. When selecting which witnesses and exhibits to include, think back to your objectives and consult your pretrial statement. What testimony or documents will help you to prove the statements or arguments you have made in your pretrial? Those are the witnesses and exhibits you should be prepared to use.
Ask friends or family which documents or testimony they find most compelling or convincing. If possible, consult with the most neutral friend or family member you can find. Several items are frequently used as exhibits, including Affidavit of Financial Information for both parties, a child support worksheet, proof of expenses for child-care and health insurance for the children. Proof of any extraordinary expenses incurred on behalf of the children like tutoring or therapy should be included in your exhibits.
Typically, written negotiations are used as well as evidence of your reasonable conduct. Emails can and are often used as exhibits as are Facebook posts, photos, personal logs, and all types of financial documents. The specific facts and issues of your case will determine which documents you use as exhibits. Remember, you must have disclosed them to the opposing party well in advance of trial. Also, you will need to deliver your proposed exhibits and an exhibit list to the clerk of the court approximately 7 days prior to your hearing so that they can be marked. Check with your judge to see if they would like a “bench copy” of exhibits. (A bench copy is simply a copy for the judge.)
Next, you will want to think about and probably write down the questions that you intend to ask your witnesses and the opposing party and their witnesses. You will come up with other questions during the hearing, but good trial preparation includes identifying which questions you would like to ask. Practice with your witnesses, so that they and you will know what to expect.
As with anything else, good preparation will make all the difference in the world for your trial presentation. The moving party (petitioner if it’s your initial case, then whoever asked for the modification or enforcement in post decree cases) will present evidence first. Most often, the court uses your pretrial statement as your opening statement, and you will not give an additional opening statement. However, some judges will give you the opportunity. Most often, I recommend skipping the opening statement and getting right down to the presentation of evidence.
What to Expect During Your Family Law Trial
First, the judge will swear you in. Then you will present testimony. As you are offering testimony, feel free to refer to your exhibits and “offer” each exhibit, one by one, as you reference the exhibit. You must explain why you are referring to each document. Do not expect the judge to read or review the exhibit without your explanation as to what the exhibit is and why it is important.
Be sure to refer to your outline so you cover all of the outstanding issues and don’t get flustered as you are speaking to the court. Try and keep your emotions to a minimum and keep your voice level where people can hear you, but you are not yelling.
After you have offered your testimony, the opposing party or their attorney will be able to ask you questions about what you testified to. This is where many witnesses get tripped up. Try and remain as professional as possible and remove any attitude when answering. If you do not understand the question, do not answer it. Do not elaborate on your answers but answer each question as completely as possible while being succinct. You will have the opportunity to clarify any positions on “redirect.”
Then you will call your next witness and follow the established pattern, direct examination (you asking questions,) cross examination (the opposing party or attorney asking questions directly related to the questions you asked on direct) and redirect, your opportunity to ask clarifying questions after cross examination. During this time, you may refer to and offer exhibits into evidence through the testimony of witnesses. The judge will review only exhibits that you “offer into evidence.” When you are finished with your witnesses, you will rest your case and the opposing party will have the opportunity to present their case.
Trials are very, very stressful. Most seasoned attorneys still spend hours or days following a hearing going through a play-by-play of the trial thinking about what was said or questions they should have asked. Be kind to yourself. Presenting a whole life in 90 minutes is extremely challenging for even the most practiced of attorneys.
Objecting to Witnesses or Evidence
If the opposing party offers evidence or witnesses that have not been previously disclosed, you may object simply by saying, “Objection, this witness was not previously disclosed.” The judge may ask for proof that the witness or document was disclosed, and then they have the burden of showing the required disclosure.
Other reasons to object may be that the evidence or witness has no relevant information to provide. Lay witnesses have personal knowledge of the facts, an expert witness testifies based on general theories or scientific principals. They must both be disclosed 60 days in advance of trial.
After both sides have presented evidence, the judge will most likely not offer a ruling “from the bench.” Most Maricopa County family court judges offer an “under advisement ruling” in writing. This can take up to 60 days following the hearing. If that is the case, any previous temporary orders remain in effect pending a final ruling.
After you receive your decree, you may have questions. There are a few options if you are unhappy with the ruling. Consult with your Certified Legal Document Preparer or an attorney about options you may have for clarification, appeal, reconsideration or setting aside the ruling in its entirety.
If you have questions, contact Access Legal directly at firstname.lastname@example.org.