Another way for attorneys to find out what someone is going to say before getting into court is through a deposition. A deposition is usually attended by the attorneys for each side, each party to the litigation, the deponent and a court reporter. The deponent may be a potential witness or a party to the litigation. The attorney who set the deposition will begin asking the deponent questions first. The opposing counsel will have the opportunity to cross examine the witness. The court reporter records the entire deposition. The testimony received during a deposition can help with preparing the case, can be used for discovery purposes, and may be used at trial. If you are the deponent listen to the questions carefully. If the question is a “yes” or “no” question then answer only yes or no unless it is absolutely necessary to elaborate. Too many times people have their deposition taken and feel compelled to elaborate on every question and response. This only increases attorneys fees and provides much more information than the attorney asking the questions was actually seeking. Remember, I will have the opportunity to question you when the other attorney is done.
There are other discovery requests that can be made during your case. Either attorney can request further financial documents or evidence materials through what is referred to as a Request for Production of Documents (a/k/a Notice to Produce). This is a document that requests numerous items of production. The response to the Request for Production of Documents is due within thirty (30) days, if it was not served with the original position. If it was served with the original petition, you have 45 days to respond.
If you have already produced the requested documents through mandatory 12.285 disclosure, you are not required to provide them again. As with the mandatory financial disclosure documents, if you can provide our office with three copies that would be of great assistance. If not, then please provide the originals so that we can make arrangements to have copies made.
There is another discovery request called Interrogatories. Interrogatories are a series of written questions that are answered under oath. The answer to interrogatories are also due thirty (30) days from the date of the service of the interrogatories, unless they are served with the original petition. If they are served with the original petition, you have 45 days to respond. However, our office requests that you return the hand written answers to us at least 10 days prior to the deadline date so that we have time to prepare the formalized answers and have you come into the office to sign them. When our office receives the Notice of Service of Interrogatories, we automatically forward a copy of the blank interrogatory questions to you. Please go through them and write complete answers to each question. You need to be completely truthful and detailed when preparing your answers.
Please be aware that the Court will recognize an emergency only when the safety of a party or child is at stake, and only if the event causing the emergency has not been ongoing. Otherwise it is not an emergency.
Mandatory Financial Disclosure:
Whether your case is a divorce, modification, or post-judgment (after the divorce or custody judgment has been entered) action, everyone must provide what is referred to as a Financial Affidavit and Family Law Mandatory 12.285 Financial Disclosure. If you are the initiating party, I will need a completed Financial Affidavit in order to file your case. This Affidavit is prepared with the information you provide my office when completing the financial questionnaire. This financial questionnaire must be completed in its entirety. Please use monthly figures when filling out the questionnaire. It is okay to take an average of the expenses you have incurred over the last couple of months. It is extremely important that you fill out every bit of information the questionnaire seeks as this will keep costs down for you in the long run as there will not be a need for unnecessary telephone calls to obtain the missing information. If you are having difficulty filling it out, please contact my office to set up an appointment with either the paralegal or one of my other assistants. If you need to schedule an appointment it will be necessary for you to gather any documents that pertain to the items you are having difficulty with so that they are readily available for review.
The other part of mandatory financial disclosure is the 12.285 documents. My office will provide you with a list of the documents required to be produced under Family Law Rule 12.285. This information must be provided to opposing counsel and filed with the Clerk of Court within forty-five (45) days of the date of service of process. You will need to gather all the documents that are in your possession or control and specifically state on that list, which documents you are providing us. This requirement does not mean that you have to incur substantial costs to obtain the records, but it does mean that if you can make a request, for example, to IRS for your tax returns that you are missing, then you are required to do so as these items are deemed to be within your control. If the documents requested do not exist, for example no brokerage account documents because you do not have that type of account, then please tell us that. If the documents are in the other party’s possession, then tell us that. This information will assist us in preparing the certificate of compliance that must be filed with the court. If you have access to a copy machine, it would also be of great assistance if you could provide our office with three copies of the 12.285 documents, rather than the originals. If you are unable to do so, you may drop the originals off at our office along with your questionnaire and we will make arrangements for them to be copied so that you may retrieve your originals when you return to sign your financial affidavit. Under the rules, there is a continuing duty to disclose. If, for example, your income changes and you begin receiving new pay stubs, a new tax return has been filed, or updated account statements, then you need to provide these to our office so that we can supplement your financial disclosure. The general rule is that these updates should be provided prior to any court proceeding, including hearings, mediations and depositions.
Mediation is a process wherein the parties and attorneys try to settle some, if not all of the issues. Mediation generally occurs no sooner than the completion of mandatory financial disclosure. Mediation is intended to bring the parties together in an environment that is confidential and encourages the parties to speak freely. A neutral person, the mediator, attempts to facilitate open communication between the parties. Mediation requires a good faith attempt by the parties to settle the issues between them. You can not go into mediation with the mind set that things are going to end up entirely your way. Parties must be willing to give and take in order to reach a fair settlement. If you reach a settlement, a mediation agreement will be drawn up and signed by the parties and their attorneys. Once the agreement is signed, it is very difficult to have it set aside. There are certain circumstances which will allow it, such as duress, fraud or undue influence. Having regret after the mediation is not one of these circumstances.
Some counties require the parties to attend mediation. Orange County has a requirement of two mediations, one before a temporary relief hearing can be scheduled AND before the matter can be taken to trial. Seminole County generally refers a case to mediation before it can be taken to trial. Parties can also request mediation amongst themselves or by filing a motion with the court.
Hearing vs. Trial: What is the difference?
A hearing is a motion that is scheduled before the judge. There are different kinds of hearings. Ex Parte, short motion and uncontested final hearings are done on first come – first serve basis. These hearings are not scheduled with the judge’s office, although they are coordinated between the attorneys. Clients do not generally attend ex parte hearings. An ex parte hearing is one that deals with strictly uncontested matters or require only legal argument and can be accomplished in under five minutes. Short motions hearings are held on matters that will take less than 15 minutes and do not require testimony by witnesses or parties. Sometimes, clients attend short motions hearings. Our office will let you know if you will need to be there. Uncontested final hearings are held when the parties have reached a full settlement and can proceed to have the final judgment entered. Only the attorney taking the matter to final hearing and their client are required to attend this hearing. Occasionally, judges will call up a status hearing. This is a hearing where the judge wants to find out where the case is at and what needs to be done to move it along. Depending on the judge, clients may be required to attend. Our office will let you know if you need to be there.
Then there are regular hearings which is when a motion needs to be heard by the court to afford some sort of temporary relief. These are matters which require 15 minutes or more (usually no more than 1 hour will be allowed) and testimony by the parties or witnesses. A hearing is coordinated with the opposing counsel and the judge’s office. Depending on the judge and attorneys’ calendars, hearing dates and times may be available as early as two weeks or as far out as two to three months away. Regular hearings require client attendance. If you have a witness who you think will be beneficial to your case on the matters being heard, then you would want them to attend the hearing as well. Hearing time is precious and we must take whatever measures we can to make sure that the time we are allotted is not wasted. Our office would want to speak with them first to find out what they have to say so that we can make the determination as to whether that person is necessary. This can be done by telephone or in person. If it is determined that the witness would be helpful to your case, they can either come voluntarily or we can have them subpoenaed. A subpoena requires their attendance unless the subpoenaing attorney releases them. The rules of evidence will not allow a person’s written statement in lieu of their live testimony.
Once all discovery is complete and your case is ready, it will be noticed for trial. A trial brings your case to conclusion. Trial is when the matters set forth in the initial pleadings are heard by the court and ruled upon. For instance, if you are involved in a custody battle, this is when the judge would make the determination as to who the child will live with. The court will issue an order setting pre-trial conference. The order will also require the attorneys to file a pre-trial statement within a certain time period. Our office will prepare the pre-trial statement, but will need assistance from you in doing so. We will need you to provide us with the names, addresses and telephone numbers of any person you believe you may call as a witness as well as a brief description of what they will be testifying to. We will also need to know what items you think we should use at trial. Additionally, our office will review the entire file and add some things and witnesses you may not have thought of, or may have forgotten about. It is vital that we list every witness and every piece of evidence we intend to use at trial. If it is not listed on the pre-trial statement, the court could deny its use. The pre-trial conference is when all the attorneys with cases on that trial docket appear before the judge and get trial dates and times from the judge. Unless the order specifically states so, your attendance is not required at this pre-trial conference. Our office will inform you when the trial date is. You are required to attend the trial. Live testimony is required, no affidavits or written statements are permitted. Once the trial is concluded a final judgment, based on the judges ruling, will need to be prepared and submitted for entry after the attorneys have agreed upon the content and form of the final judgment.