Why Have a Pretrial Hearing?

Courts use the pretrial hearing, also referred to as a pretrial conference, to get organized for the upcoming trial. Your court will have its own set of rules and forms for the hearing. The forms must be completed, sent to the other lawyer, and filed before the hearing. The court will expect you and your spouse to have completed all discovery, lined up all witnesses, developed trial strategy, prepared a settlement proposal, and discussed settlement.

Lawyers like to blame courts for the perception that divorces seem to take forever. The judge's view is that lawyers are rarely ready for trial when a date is first set. It's more common for the lawyers to ask for a continuance (rescheduling) of the court date than it is for the court to need a continuance of the hearing.

When a pretrial notice arrives at your attorney's office, you probably won't be ready to go to trial. Remember our discussion about discovery? You may be waiting to receive a report from an expert, documents from your spouse, or information from outside sources. For example, suppose you've hired an expert to assess the value of your spouse's business. Your expert may have requested financial records from your spouse, but she has been slow in providing all of the requested information so your expert hasn't completed the report.

Are You Ready for Pretrial?

What if you're really not ready? Of course, you and your lawyer will need to discuss whether you should ask for a continuance, also called an adjournment, or go unprepared. In some states, a pretrial conference is simply a way of bringing the parties together to establish a trial schedule and promote settlement discussions. Complete preparation is sometimes not necessary. You should rely on the expertise of your attorney to decide whether to ask for a continuance.

This decision depends a lot on your judge, and also on whether the same judge will handle both the pretrial and the trial. There are two lines of thought here. Some judges feel they shouldn't preside over both the pretrial and the trial. They base this on the fact that settlement discussions may occur at the pretrial that might influence trial decisions.

Settlement discussions between parties are generally not admissible at trial. This is to protect the rights of the parties because if a judge knows what one party was willing to agree to before trial, it could bias the judge in his decision at trial.

Other judges feel they should handle both the pretrial and trial. In some jurisdictions, a pretrial conference may happen with the judge's law clerk, and you may not see the judge at all unless the parties come to a settlement agreement. Where a judge is involved at the pretrial conference, you and your attorney may get an idea about how a particular issue will be judged at trial. For example, if a judge tells you how he feels about spousal maintenance at the pretrial hearing, he sends a clear message about how he will decide at the trial. This message can help the parties settle, although many judges can be very subtle in their comments in order to protect the rights of the parties. It's also important to remember that at a pretrial conference the judge does not have all of the information and has not had the benefit of hearing the testimony and evidence that the parties will present at trial. While it is always better if you can settle your case, a trial might be necessary if you and your lawyer believe that the evidence is compelling and in your favor.

To Go or Not to Go

If your judge is a stickler for the rules, you should not go to the pretrial unprepared, because you don't want to make him angry and possibly negatively influence his later decisions. If your judge is more flexible, you could go to the pretrial and use it as an opportunity to get a feel for the judge's perspective on issues. Again, when the judge gives you his take on certain issues, he gives you tools to move toward settlement.

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