Before the Trial

The first appearance

What can I expect at the first court appearance?

If you are seeking a restraining order or another type of emergency relief, such as emergency custody, then the first appearance might be ex parte, meaning you will see the judge but the defendant will not be there. Usually, the judge will review the petition you have filed, ask any questions he or she thinks are important, and decide whether to issue an ex parte temporary order.

If you are not seeking emergency relief, the first (initial) appearance is usually an opportunity for the judge to:

create a schedule for how the case will proceed;
issue any temporary orders that are necessary; and
see if the parties can agree on a final outcome.

For custody cases, the first appearance gives the judge the opportunity to explain the court process to the parties and make any appropriate temporary (preliminary) decisions regarding custody and visitation while the action is pending. In some jurisdictions, the court rules require the parties to try to mediate and the court may even provide a mediator. If the parties agree on how they would like to see the case decided, then they may be able to resolve it during the first appearance, before mediation, by letting the judge know that they have reached an agreement. If the judge approves an agreement, then he or she may grant a final order based on those terms. If the parties do not agree, or if the judge does not approve a settlement, then future appearances may be scheduled. In some rare instances, a judge may dismiss a case at a first appearance if there is some obvious basis for dismissal – for example:

if there is a problem with the petition;
if the same action is pending in another court; or
if the court does not have jurisdiction to hear this type of case.

How should I prepare for the first appearance?

Although the case is just beginning, it’s helpful to think about what you are asking for in a final outcome for your case and whether it might be possible to get that outcome with a settlement agreement. It is important to come to the first appearance knowing what you are asking for in terms of a final resolution because it will set the course for the entire course case. You should also know if you want to have a temporary order in place while the court case is pending and what terms (provisions) may be appropriate. If a settlement is not reached, the judge will primarily focus on matters like advising the parties of their rights, scheduling future court dates, possibly arranging discovery, and issuing any temporary orders, if necessary.

It’s important to research what your potential options are beforehand so that you know what you can ask for when you are in front of the judge. In our Know the Laws – By State section, we have information on what kind of relief may be available in various types of court cases. For example, if you would like to see the abuser pay restitution or be ordered into some kind of rehabilitation program, you may need to request this in your petition and clarify what you are seeking at the first appearance so that the judge knows. Except in protection order cases or other ex parte proceedings, the abuser also has a chance to appear at the first appearance. We have information about Safety in Court to help you prepare for your court day.

What happens at a court conference or a status appearance?

Depending on the type of court case you are involved in, the judge might schedule a court conference or a status appearance after the first (initial) court appearance. The status appearances that occur between an initial appearance and a hearing or trial are a chance for the parties and the judge to:

check the status of the case;
deal with any scheduling issues;
determine whether a settlement is possible; and
deal with ongoing issues that might require temporary orders or modifications of temporary orders.

A court conference is a conversation where the parties or their attorneys have a chance to discuss the case and specifically address the prospects of settlement with the judge, the judge’s law clerk, or the court attorney. In some states this conversation is off-the-record.

Discovery

Discovery Basics

What is discovery?

In some court cases, the parties are required to give each other information and documents about the case before there is a trial. This exchange of documents and information is called “discovery,” and there are rules in every state about how and when discovery happens. Usually the parties have to send written requests, also known as demands, to the other party to get this information.

This exchange of information lets the parties know what evidence the other side will be presenting at trial. Exchanging discovery helps to make the trial run smoother and it often helps the parties reach an agreement or settlement without having to go through a trial. Knowing what kind of documents or information you can ask for, how to use depositions, and how to respond to discovery requests that you receive, can be an important part of winning your case.

For example, let’s say you are getting divorced and there is an issue about whether the marital home is the separate property of your spouse or whether it is marital property. Through discovery, you can make a document request to show that you made financial contributions to the home or that mortgage payments came from a joint account. To get more specifics about the allegations in a complaint or counterclaim, you could demand a bill of particulars. If you are wondering who the other side is calling as witnesses, or if the other side plans to call any experts to testify, you can make a request for a witness list to get that information. You also could send interrogatories to your spouse with detailed questions about the property, and you could question your spouse about the property during a deposition to establish that you helped with the upkeep of the property. You could then present all of this information to the judge at trial to prove that you were involved with the property and, therefore, the property should be considered marital property and subject to equitable distribution. This is just one example, but as you can see, discovery is an important information-gathering tool.

Does discovery happen in every case?

Discovery does not happen in every case. There is discovery in most civil court cases where one party sues another party for money damages except, small claims court. Cases that involve discovery can sometimes take a year or more from start to finish.

Other cases happen much quicker, sometimes called “summary proceedings,” where there might be less formal discovery or no automatic discovery at all. Family court cases, other than divorce, will fall into this category in some states, as well as most eviction proceedings. In cases where discovery is less formal, you may be able to request documents by writing a letter to the other side or even by orally asking for them in some cases.

The court itself will handle discovery in some cases, like child support, where parties are required to turn financial documents into the court. In cases where the court itself handles discovery, usually the court clerk will send out a letter to the parties to request necessary documents or information. The parties have to send this information to the court by the date on the letter. Sometimes the clerk will include a court order listing the required documents if a judge puts the request in a court order. You usually have to send in the information or documents before the first court date.

If you are involved in a court case and you believe that discovery may benefit you, you might be able to ask the judge or the court clerk if there is discovery allowed in your case. The judge can sometimes grant discovery even if it is not automatic in a certain case. This section will provide a basic overview of some of the tools that a party can use to get discovery from the other side and how to respond to discovery requests that you get.

What if the abuser is using discovery as an abuse tactic?

In some cases, an abuser might send unnecessary discovery demands as a way to continue the abuse. S/he may ask for personal information that is unrelated to the court case, for example. Keep in mind that you have to respond to valid discovery demands, but if demands are excessive or unrelated to the court case, then you may be able to object and get a judge involved.

Abusers will also file excessive motions or unreasonably delay cases in some circumstances. This type of intentional misuse of the court system as a form of harassment is often called “litigation abuse.”

If you are facing litigation abuse, you may want to try proving to the judge that the motions the other party keeps filing are without a good reason, and s/he is instead filing to harass you. You can also argue that the unreasonable delay that could be caused by the discovery is also an abuse tactic. In some courts, you might then be able to get some type of order from the judge that will help to limit the litigation abuse or its effects. This does not happen often, but some of the things the judge may order are that:

the party bringing the excessive motions has to pay the attorney’s fees and costs of the other party;
the party who files meaningless motions has to reimburse lost wages and other expenses of the other party;
the abused party is excused from appearing at hearings or is permitted to appear by telephone;
no motions or petitions can be filed or that no court appearances can be scheduled without the judge’s prior approval; or
requests that cause excessive or unnecessary delay, like long adjournments or excessive discovery requests, are denied.

Document Requests

How do I request documents from the other party?

To prove your case, you sometimes need to get documents from the other party. You can use “discovery demands” to get the documents that you need from the other side, although the process can vary by state. A discovery demand is a written request for specific documents that the other party has in his/her possession. In certain cases, you might be able to write a letter to the other side and request the documents that you need. However, in more formal cases, you will likely have to draft more formal discovery demands. There are usually forms available for this in local law libraries, from the court clerk’s office, or online.

One thing to keep in mind is that you can only send discovery requests to the other party. If you need documents or information from a person, organization, or company that is not a party in the court case, you might need to get a subpoena from a judge. Go to Can I get documents from someone other than the respondent? for more information.

What types of documents or items can I request in my discovery demand?

You can request documents that are relevant to your court case that the other party has access to. You can also request physical items to look at (“inspect”). This can include:

letters;
emails;
photographs;
calendars or agendas;
financial information, like W2s, bank statements, and tax returns;
deeds or land contracts; and
other relevant physical items, like weapons, cell phones, or damaged property.

Can I get documents from someone other than the defendant?

You might be able to get documents from someone who is not involved in the court case by getting a subpoena duces tecum. A subpoena duces tecum is issued by a judge or sometimes a lawyer can sign a subpoena, in certain states and circumstances. The subpoena tells a person, a company, or another entity to produce certain documents that are important to a court case. If you need to get a subpoena, you can talk to the court clerk about the process in your county.

Keep in mind, however, that if you do subpoena a witness to testify, you might have to pay him/her for the mileage it takes to appear at court. This could depend on the state or court that you are in. You may want to ask the court clerk if you have to pay for a subpoena or pay a subpoenaed witness to testify in your case. It is also possible that the person you have subpoenaed could ask the court to dismiss the subpoena by filing a “motion to quash” the subpoena. For example, a person can ask for a subpoena duces tecum to be quashed if:

it is overly burdensome (demands too many documents or is too hard to respond to);
there is not proper notice, like if a person receives a subpoena hours before trial and s/he does not have time to make arrangements to appear; or
it asks for protected information, like conversations between a lawyer and client, things that are said to a therapist, or, in some states, communication between a domestic violence advocate and a victim s/he is working with.

How do I respond to a discovery demand that requests documents?

If the party who receives a document request has the documents that are requested, unless there is a valid objection, s/he has to produce them by:

sending or delivering copies to the other party; or
making the documents available for the other party to inspect.

When you send or deliver documents, you will make a list of the documents provided and include copies of the documents. Alternatively, you can send a letter to the other party to let him/her know when and where the documents will be available for inspection. Inspecting documents or items is usually done if the number or type of items/documents requested makes it impractical to provide copies. In your discovery response, you would include a time and place for the inspection and the other party has an opportunity to go and review the requested items at that time.

When you respond to a discovery request, you should make sure to do it within the timeframe listed in the discovery request or in the “scheduling order” if the judge issued one. In some cases, the judge will hold a court conference to establish a timeframe for discovery, motions, and the trial. You should pay attention to these deadlines because if you miss a deadline, the other party might file a motion to compel discovery.

In most cases, you will only send your discovery responses to the other party. There are cases though where the court, not the other party, will request information. This usually happens in divorce or child support cases. In these cases, when you receive a notice from the court, you should send your response back to the court and, in addition, send a copy to the other party.

How do I object when I do not want to turn over a document?

If you receive a discovery demand that requests documents that you do not want to provide, there may be ways to avoid turning those documents over. You cannot destroy the documents because that could result in serious consequences for you and for your case. You can write back to the person making the request and explain why you are objecting. You must have a valid reason to object to giving the other party the documents. Some valid reasons are:

the requested document is not relevant to the case;
the documents are protected by a “privilege”—for example, letters back and forth to your attorney, or your psychiatrist’s notes; or
the request is overbroad and not specific enough to provide documents relevant to the case. In other words, the request will produce documents that are well beyond the scope of the case and are not relevant.

If you object to a discovery request, generally you have to let the other side know that you are not giving him/her documents that s/he has asked for. The other party might not respond, or s/he could file a “motion to compel discovery.” A motion to compel discovery is a written request to the judge in which the party seeking discovery asks the judge to issue an order requiring that the other party turns over the requested documents by a certain date or face certain consequences.

Depositions

What is a deposition?

A deposition is another type of discovery that is used to gather information. It is when one party questions the other party or a witness outside of court, under oath, so that the parties know what that person will say at trial. The parties or their attorneys have the ability to ask questions of the person being deposed. Usually the person who requested the deposition will ask questions first. The attorney who represents the person being deposed might ask follow-up questions only to clear up any misunderstandings that may have come up during the initial questioning.

You, or your attorney, if you have one, can object to questions that are asked but the objections are usually only noted in the transcript. Usually, the person being deposed would still have to answer the question. The reason for objecting is that it preserves the objection so that a judge may be able to rule on it at a later date, as a result of a motion, at trial, or on appeal.

If you are testifying at a deposition, you should make sure to tell the truth and do not try to make up answers. If you cannot remember something, it is okay to say “I don’t know” or “I don’t remember.” After a deposition is completed, the transcriptionist, also called a court reporter, will produce a written copy of the deposition, which is called a transcript. You should look through the transcript to see if there are any errors and, if so, make sure to alert the other party or his/her lawyer. An error in the transcript occurs when the transcriptionist writes something down that you didn’t actually say. Transcriptionists are human and sometimes errors do occur – they may hear you wrong or mis-type an important word. If an error is not corrected, it might have major implications for a case. If the transcript has the wrong time, wrong date, or other wrong answer that is not corrected before trial, it could be used against you at trial. If someone has testified in a deposition and then he/she changes his/her testimony at trial, the attorney can use the deposition transcript to call into doubt the truthfulness of that person’s trial testimony.

How can depositions help or hurt my case?

Depositions can be very helpful to your case because they will let you know ahead of time what testimony you can expect from the other party and from their witnesses. That way, you can better prepare yourself to ask cross-examination questions or enter documents at trial that might show that the other party or their witnesses are lying. You can also use the deposition transcript itself as evidence if the person who is testifying at trial says something different from what s/he said during depositions.

This also works the other way around though. Depositions can help the other side to build their case against you. If you say something in a deposition that later turns out not to be true or that you describe differently when you testify at trial, it could seriously hurt your case at trial. The other lawyer could use any inconsistencies in your deposition to call the truthfulness of your entire testimony into question.

Who will be at a deposition?

Usually only the parties, their lawyers, a transcriptionist/court reporter, and the witness who is being deposed will go to the depositions. The transcriptionist will type everything that is said so that the parties have a written record of the depositions, known as a transcript. You do not have to depose all witnesses on the same day. Depositions might happen over the span of several different dates. Although the judge is not present during the deposition, sometimes a judge will be “on call” in case there are disputes over any questions, but this is typically only in high profile cases. Usually any issues or objections that are raised during a deposition are dealt with by the judge at future court appearances.

What questions should I expect to be asked at a deposition and how should I answer them?

Usually the parties or their attorneys have a chance to ask any questions related to the case that they want. If you have a lawyer, you should discuss what to expect at depositions with your lawyer prior to depositions. If you do not have a lawyer, you may want to practice explaining what happened to a trusted friend or family member so you get comfortable talking about it out loud.

You will be under oath at depositions, as will the other people being deposed, so you have to answer truthfully or you could face perjury accusations. Do not try to make up answers. If you cannot remember something, it is better to say “I don’t know” or “I don’t remember” than to give an answer that you are not sure about.

When the other party or his/her attorney is asking you questions, you will usually want to answer the questions with as little information as possible for a few reasons:

A deposition is not in front of a judge or jury and so there is no reason to try to add extra details that you may otherwise add if you are trying to impress a judge or jury.
One point of depositions is to lock in the testimony of the parties and witnesses so that the parties know where they stand going into trial and can make decisions about settlement or trial strategy. You want to help the opposing party as little as possible in this regard.
Either side can use deposition testimony to discredit witnesses at trial. The more details that you testify to at a deposition, the greater the chance that you might describe those details differently at trial.

In sum, when answering deposition questions, it is very important to be honest, to not give answers that you aren’t sure about, and to make sure that you are only answering the question without providing extra unnecessary detail. We have a Preparing for Court video series on our Videos page that has examples of both direct and cross-examinations that might help you prepare for a deposition.

Who pays the deposition costs?

Usually the party that asks for the deposition will pay the deposition costs of the transcriptionist and for the room if space has to be rented out. This can be very expensive, into the thousands of dollars depending on how many witnesses there are and how long the depositions last. Each party pays for their own attorney’s time at the depositions, however.

If you are thinking about asking for depositions, you may want to call a transcriptionist to see if you can get an estimate of the charges for his/her services. If you have an attorney who you are paying hourly, you may also want to get an estimate from your attorney for his/her time.

You do not have to depose every single person who is going to testify at trial. If money is an issue, you could think about deposing only the other party or key witnesses. If you cannot afford depositions, then you do not have to ask for them. The other party can still request depositions from you and/or your witnesses if s/he wants to and, if you have an attorney to defend you at the depositions, you would still need to pay your own attorney’s fees.

How do I schedule a deposition?

The party that wants a deposition will usually send out a deposition demand that includes a time and place for the deposition to occur, or it might say that the time will be decided later. If the time is to be decided later, then the attorneys in the case or the parties, if there are no attorneys, will decide on a time that works for everyone involved. The person who asks for the deposition also has to hire a transcriptionist to produce a written transcript of the deposition.

It is possible to object to the other party taking depositions. Some of the reasons that a party might object to a deposition demand are that not enough notice is given or the witness has no relevant information.

Interrogatories

What are interrogatories and how are they used?

Interrogatories are a discovery tool that the parties can use to have specific questions about a case answered before trial. Interrogatories are lists of questions sent to the other party that s/he must respond to in writing. You can use interrogatories to find out facts about a case but they cannot be used for questions that draw a legal conclusion. For example, in a case about a car accident, you could ask, “Was the vehicle in the crash registered in your name?” but you could not ask, “Were you at fault for the accident?” In a custody case, you could ask, “How many doctors’ appointments have you attended?” but you could not ask, “Is it in the child’s best interests to live with me?”

You may receive interrogatories with questions that call for legal conclusions or that you believe are irrelevant. You can read about how to properly respond in How do I respond to interrogatories?

Can I send interrogatories to the other party?

Depending on the type of court case you are involved in, you might be able to send questions to the other side in the form of interrogatories. As we mention earlier, not all cases qualify for discovery and you might have to request that the judge allow discovery in your case. You will usually send out your interrogatory questions with your initial discovery demands. In complex cases, the judge might hold a scheduling conference to map out a timeframe for discovery.

To create your interrogatories, you will create a list of questions, label them “interrogatories” and include a letter that “demands” that the other side answer them. If the other side does not answer your interrogatories, you may be able to ask the judge to make the other side answer the questions by filing a motion to compel discovery.

How do I respond to interrogatories?

You have to respond to interrogatories in writing to the best of your ability. If you do not answer an interrogatory question, and then the other side learns that you did in fact know the answer, it could have a negative impact on your case at trial. The other side could imply that you are trying to hide information that is harmful to your case and ask that an inference or assumption is made at trial based on this.

However, you can object to interrogatories that call for legal conclusions. You can also object to questions if they are not at all related to the court case. To object, you need to write out the reasons for the objection instead of answering the question. These objections must be valid and you should note them in your response along with the questions that you are answering. If the other side does not think that your objection is valid, s/he may be able to file a motion to compel, which basically asks the judge to force you to answer the interrogatories. The judge will then decide whether the question in the interrogatories must be answered or not.

Let’s take the examples mentioned in What are interrogatories and how do they work? and look at how you might respond or object to each one:

Q; Was the vehicle in the crash registered in your name?

A: Yes, on the date of the alleged traffic accident, the vehicle was registered in the name of the defendant, Jane Doe.

Q: Were you at fault for the accident?

A: Defendant respectfully objects to this interrogatory question because it calls for Defendant to reach a legal conclusion.

A Bill of Particulars

What is a bill of particulars?

A bill of particulars is a written document in which a party has to explain the allegations in his/her complaint, or petition, in more detail. The respondent in a lawsuit might request a bill of particulars if the complaint has general allegations without getting into the specific details that would be necessary for the respondent to properly defend him/herself in the case. In other words, a bill of particulars is a discovery tool that can be used by a respondent to figure out what the other party is claiming happened. Usually, requests for bill of particulars are sent out before depositions happen, and before other forms of discovery, so that the other party has a more complete sense of the allegations against him/her. If there is a complaint filed by one party and a counter-complaint filed by the other party, both parties may request a bill of particulars against each other. This way, the parties can start to understand what the other side’s “theory of the case” will be – in other words, what the party is trying to prove to the judge so that s/he can get the outcome and the relief s/he is looking for.

Once you know what the other side is trying to prove to the judge, you can better prepare for depositions or trial. If a bill of particulars does not explain enough of the case to support the lawsuit, then the other party might be able to file a motion to dismiss the claim.

How do I request a bill of particulars?

You can request that the other side provide a bill of particulars by sending a written “demand for a bill of particulars.” In your demand for a bill of particulars, you will ask the other side to expand on or explain their allegations. You have to point out the specific allegation that you want the other side to expand on and make sure s/he knows what other information or explanation you need. If you are not specific enough when you request a bill of particulars, the other side might not respond and will instead object to your request. For example, let’s say in your divorce case, your husband files for full custody and mentions in the petition that you don’t let him see the child enough. You likely would not be able to ask a question like, “Why don’t you think I would be a good custodial parent?” because that is too general. However, you could ask, “Please set forth specific examples of Defendant’s alleged interference with Plaintiff’s parental relationship with the child.”

How do I respond to a request for a bill of particulars?

When you receive a request for a bill of particulars, you should first read it over very carefully and then read your complaint or petition. You need to think about what it is that you need to prove to the judge in order to win your case and then explain in more detail the general allegations that you made in your complaint or petition. For example, if you filed a divorce action based on the ground of cruel and inhuman treatment, you may have just alleged in your petition that you were “subjected to cruel and inhuman treatment during the marriage.” The request for a bill of particulars may say: “Defendant hereby demands a bill of particulars setting forth the specifics of the alleged cruel and inhuman treatment.” In the bill of particulars that you write up, you will explain exactly what you meant by cruel and inhuman treatment, while keeping in mind what you can prove at trial, and the approximate dates that the incidents happened. For example, you might respond with this level of detail for each incident: “On or about December 28, 2018 at 7:00 pm the Defendant shoved Plaintiff to the ground in the kitchen of their marital home and struck Plaintiff approximately 12 times with closed fists. These blows landed around the head, neck, and shoulder area of the Defendant. The Defendant suffered a broken nose as a result of the blows, along with other physical pain and bruising. Plaintiff estimates the entire attack to have lasted three to five minutes.”

Make sure you are truthful and accurate in your bill of particulars because any inconsistencies between what you include in the bill and testimony that you give in a deposition or trial can be used to damage your credibility and your case. If there are certain incidents that happened for which you cannot recall details and others where you can vividly remember details, you may decide to only include the ones that you know you can testify to.

If a statute controls your case, meaning that the specific things you need to prove to get the relief you are asking for are set out in a state or federal law, then you should read the statute to see if there are certain things that you need to prove; these are called “elements.” You will need to keep the elements of the case in mind as you are expanding on your claims in the bill of particulars. If you do not cover all of the necessary elements, then the judge might dismiss your claim. For example, if you are suing an abusive partner in civil court for money damages because you were harassed, you might sue based on “intentional inflection of emotional distress.” Generally, the elements that you’d need to prove might be that:

the defendant acted intentionally;
the conduct was extreme or outrageous;
this harassment caused severe emotional distress.

Witness Lists

Can I find out if the other side is calling witnesses? Will I have to tell who my witnesses will be?

As part of the discovery process, the parties can usually ask each other to identify any witnesses who saw incidents that occurred or who have other relevant information. The parties might also have to disclose if they plan to use any witnesses during the trial, both expert witnesses and non-expert witnesses who are often referred to as “lay witnesses” or “fact witnesses.” Depending on the type of court case, the parties might automatically have to exchange witness lists before trial. In other cases, you will have to request a witness list during discovery.

If you have to formally request a witness list, you would usually do this in writing as part of your discovery demands. In addition to requesting the names of the witnesses, you may be able to ask for a brief description of what they will testify to. Once you have the other side’s witness list, you can decide whether to ask for depositions from any of the witnesses. You can contact witnesses the other side identifies, and the other side is allowed to talk to your witnesses. However, you cannot threaten witnesses, intimidate them, or suggest answers. If you do plan to contact the other party’s witnesses, you should be careful about contacting the witnesses outside of an official setting because you could be accused of tampering with the witnesses.

What are expert witnesses?

An expert witness is someone with specialized skills, knowledge, or experience who testifies in court about what s/he believes has happened in a certain case based on those specialized skills, knowledge, or experience. Unlike any other witnesses who can only testify about what they have seen, felt, heard, smelled, touched, etc., expert witnesses can draw conclusions and give their opinions as part of their testimony.

Experts can be useful in cases that involve domestic violence. For example, a psychologist may be called as an expert witness to explain why an abused partner did not leave an abuser and otherwise acted in ways that might not make sense to a judge who doesn’t have any experience with domestic violence issues. Experts do not need to be academic in nature, you may be able to call a mechanic to explain what happens if sugar is put into a gas tank, or you could call a domestic violence professional to talk about the dynamics of domestic violence.

If a party is going to use an expert witness, s/he usually has to give to the other party the expert’s contact information and what subject the expert will be testifying about. This information is necessary so the opposing side can begin researching the expert with an eye towards trying to show that the person is not actually an expert and should not be allowed to reach any conclusions in the case. In some cases, both sides will use expert witnesses who may even reach different conclusions. It can be important to know how qualified each expert is so that an argument can be made as to which expert’s testimony should be believed (credited) by the judge or jury.

Why might I want to know if the other party plans to call experts?

You will want to know about expert witnesses that the other party plans on calling to testify so that you have time to prepare for how to handle them at trial. Once you know who the expert witnesses are that the other side is going to call, you can research into their background to see if the expert is actually experienced enough to qualify as an expert. If the proposed expert has only been in the field for a very short time, or has experience in some other area that does not necessarily match up with why s/he is called to testify, then you can challenge the witness being recognized by the court as an expert.

Once an expert witness is called to testify at a trial, the party who is offering the expert will ask him/her questions to establish his/her expertise. The judge has to approve the expert witness to qualify as an expert in a certain area and it may be possible for you to object if the expert lacks enough experience.

Even if the judge agrees to qualify the person as an expert witness, thereby allowing him/her to testify at trial, your research might lead you to other things in the expert witness’s background that you could use to discredit the testimony of the expert witness. Expert witnesses can be a very effective piece of a person’s case, and if the other side can call into question the expert’s opinions and cause the judge or the jury to doubt the expert, it could have a major impact at trial.

Motions and subpoenas

How do I ask the court to take specific actions while my case is pending?

You can ask the judge to take some kind of action while your case is ongoing by filing or “making” a motion. A motion is a request that the judge grant some kind of relief related to your court case. There are a few different ways that you can make a motion.

Oral motion - You can make a motion verbally (orally) while in court. This can be at the initial appearance, at a status appearance, or during a hearing. Usually, you can use an oral motion when the request is not complicated, or if it is an urgent request that you are hoping the judge will grant that day. When you make an oral motion, the other party or his/her attorney can respond by arguing against the motion. The judge will either make a decision during court, hold off on making a decision to consider it further, or the judge might ask you to put the motion into writing.
Written motion – Each state and jurisdiction may have its own process for filing written motions. To make a motion in writing, you may need several different documents. Your court may have a specific form that needs to be filed for a motion, and you will usually also submit supporting documents like an affidavit in support of the motion, a memorandum of law (if necessary), and exhibits that would be admissible at a hearing. If you have an attorney who is representing you, the motion that s/he files on your behalf would also include an affirmation from your attorney. Some states also require you to file a notice of motion that outlines what you are asking for and sets a time for you to appear in court to present (argue) your motion to the judge. In some situations, you might also make a motion by writing a letter to the judge that explains what you are asking for, and why. Any time you send anything in writing to the judge you must also send a copy to the other party or his/her attorney. The other party would then have a chance to respond.
Emergency motions – Different jurisdictions will have different ways for a person to file for an emergency order from a judge. This might be called an emergency motion, an order to show cause, a show cause motion, or something else. Generally, a judge will only grant emergency relief if there is some chance that serious harm might result if the temporary relief is not granted. The judge might grant an emergency order, but then schedule a court appearance within a few days. After the appearance, the judge can decide whether or not to grant the requested relief on a more permanent basis.

What kind of motions can I make?

Your motion must be related to the case that is pending before the judge. Here are some other common motions:

Motion for a temporary order – You can ask the judge to grant a temporary (interim) order while the case is pending. This might be a temporary restraining order or a temporary custody order. In a divorce case, you may be able to make a motion for temporary relief like support, attorney’s fees, exclusive use of a marital residence, an order prohibiting the parties from using marital assets or taking on marital debts not related to day-to-day living expenses, or other relief as necessary.
Adjournment requests – Even simple requests like adjournments are technically motions. An adjournment is a postponement of a court date. Depending on how far away the court date is, you might need to provide a convincing (compelling) reason for a judge to grant an adjournment. If you cannot attend a scheduled court date, usually you can request an adjournment verbally on the prior court date, or you can send letter to the court with a copy sent to the other side. Be sure to ask the court clerk exactly where to send your written request for an adjournment. If you can get the other side’s agreement to adjourn the case, it may increase the likelihood that the judge grants your request.
Motion to dismiss – If the court case is filed by an abuser only as an attempt to further abuse, it may not be serious (frivolous), lack merit, or have some other defect, and then you can motion for it to be dismissed without having to go through a trial. It will be up to the judge whether to grant a motion to dismiss.
Discovery-related motion – In some types of cases, the parties will exchange information and documents before trial, which is called discovery. Discovery may not be granted automatically in certain cases, and in those cases, you might have to make a motion to get access to certain information from the other party. In addition, if the other party is not cooperating with discovery, you can file a motion to compel to force him/her to cooperate with the discovery process.

Do I need a subpoena for potential witnesses to testify?

Anyone can be a witness – a friend, a family member, children, an emergency room nurse, a doctor, a stranger who saw or heard the abuse, a law enforcement officer, etc.

Some witnesses may not come to court unless they are given a subpoena that commands them to appear and testify. Court clerks usually have subpoena forms that you can fill out and the subpoena will have to be signed by the judge. There may be specific rules in your state regarding how the witness has to be served with the subpoena and even how many days in advance of the hearing s/he must be served. Be sure to ask the clerk or the judge for this information. In some states, the sheriff department will serve the subpoena. In other states, you may have to get someone over the age of 18 to serve it, or a process server. You can ask the clerk of court how to have your subpoenas served.

If the people you subpoena do not come to the hearing, let the judge know. The judge can penalize them for not showing up and you can ask the judge to postpone the hearing until the subpoenaed people do appear.

Do I need a subpoena to get documents from someone other than the defendant?

To get documents from the other party, you might not need a subpoena. You can read more in How do I request documents from the other party?

To get documents from someone who is not involved in the court case, you could file a subpoena duces tecum. A subpoena duces tecum is issued by a judge or sometimes a lawyer can sign a subpoena, in certain states and circumstances. The subpoena tells a person, a company, or another entity to produce certain documents that are important to a court case. If you need to get a subpoena, you can talk to the court clerk about the process in your county.

it is overly burdensome because it demands too many documents or is too hard to respond to;
there is not proper notice, like if a person receives a subpoena hours before trial and s/he does not have time to make arrangements to appear; or
it asks for protected information, like conversations between a lawyer and client, things that are said to a therapist, or, in some states, communication between a domestic violence advocate and a victim s/he is working with.

How do I get the judge to grant my motion?

A judge will make his/her decision on a motion based on the law that applies, the facts of the situation, and the arguments made by the parties for, and against, the motion. The more complicated the situation, the more likely it is that you should put your request in writing so that the judge has a clearer picture of what is going on when making a decision. If you know the statutes or the prior cases that apply to your motion, you can include that information in a “memorandum of law.” A memorandum of law would typically be drafted by a lawyer and explains the legal reason why a motion should or shouldn’t be granted. It may not be necessarily to include a memorandum of law with your motion for a judge to grant it. You can also use an affidavit or several affidavits in support of your motion to show the judge the seriousness of the matter and to support your request for the relief. An affidavit is a sworn statement generally containing first-hand information. You can submit an affidavit for yourself and any other witnesses whose input might be relevant to the situation. Keep in mind that you are under oath when you sign an affidavit and you can only include information that you have personally seen or you know for yourself, not that you have heard from someone else. You might also be able to attach copies of photographs or other documents that you have in your possession to help persuade the judge to grant your motion. These attachments will usually be included as exhibits to an affidavit and the affidavit should include information about where the attachment comes from and why it is important.

How do I respond to a motion to dismiss made by the other party?

A motion to dismiss might be in writing or it could be made verbally in court. Either way, how you respond to a motion to dismiss will depend on the reason why the other party or his/her attorney is making the motion.

There are many reasons why a case could be dismissed before trial. A few examples are:

the facts alleged do not support the cause of action;
the court does not have jurisdiction;
there is something wrong with the paperwork;
the statute of limitations has passed; or
the issue has resolved and there is no longer an existing controversy (moot).

A motion to dismiss could be because the petition that you filed is not sufficient to support the relief that you are asking for. Maybe you did not allege a change of circumstances to modify a custody order or you failed to include enough information about domestic violence when seeking a restraining order. So, you should be prepared to argue that your petition is has enough information to support your cause of action. You might also be able to ask the court to grant you permission (“leave”) to amend your petition so that you can add additional details that might be necessary to strengthen your defense to the motion to dismiss.

Another possible reason that the other party could move to dismiss your petition is because s/he argues that the events you allege in your petition did not happen at all. If the defendant makes this motion, it might include affidavits from witnesses or other documents that would be admissible at trial to show his/her side of the story. If the motion to dismiss is convincing, you might have to present your own affidavits and documents to prove that the allegations did occur as you have described, or at least there is a question about the facts of the case as to whether or not what you have alleged actually happened. A question of fact means that there is a real dispute as to what actually took place between the parties.

If the other party lives in a different state from where you filed your initial court petition, then s/he might file a motion to dismiss for lack of personal jurisdiction. This means that the state where you filed might not have jurisdiction (power) over the other party. To defend against a motion to dismiss for lack of personal jurisdiction, you should be prepared to show the judge that the other party has had “contact” with the state where you have filed the case, s/he was served in the state, or there is some other reason why the court has jurisdiction. For more information, go to our Personal Jurisdiction page.