Damon, question for you on child custody trials. It may be a helpful piece of advice for your audience, too. I have a friend in a child custody trial where the judge decided that the trial will only be 3 hours and he only has 75 minutes to present his case. He objected and told the judge that he needs far more than 75 minutes to discuss all the facts and evidence related to the best interests of the children. The judge ignored that and limited him to 75 minutes only (witnesses, cross exam, testimony, etc) Do you think it's allowable in family court to do the following: He should prepare 60 minutes of testimony with evidence and exhibits. And maybe he can supplement that by submitting affidavits (with exhibits) on various topics around the facts of this case. Each affidavit is probably 20-30 minutes worth of discussion/testimony on various best interest factors. If he testified verbally about all of this, it might take him 4 hours (240 minutes)...but he's limited to 75 minutes We are thinking that he should speak for 60 minutes and provide supplemental affidavits instead of testifying, just because his time is so limited at trial. Are you allowed to submit affidavits to supplement your testimony? Obviously, it's a broken system when you need hours to have an intelligent discussion about the children's best interests...but a judge limits you to 75 minutes. Also, do you think this is an appealable issue? The appellate courts would have to decide, "did the judge make a decision on the totality of the circumstances, if the judge cut off the litigants from discussing material facts?"
@@damonmoorepage Great question. It's in Arizona. And I recognize you probably can't speak to Arizona law...and that's ok. Not looking for an "official legal opinion"
As luck would have it, I am actually licensed to practice law in Arizona. However, I do not regularly practice law in Arizona. What typically happens in one of the counties where I practice is that one of the parties declares (or "announces" to use the county jargon) the number of hours that the party believes the entire hearing will take. Then that announcement will be used to determine what day the hearing will take place. For example, hearings in Travis County, Texas that are three hours or less take place on Wednesday, Thursday, or Friday. Hearings that are longer than three hours take place on Monday. I have never been in a situation in which I could not get a hearing for the number of hours that I wanted, so I have not had to do any research on how I would deal with that issue. If I were dealing with a situation like the one that you described, then I would do one of two things. One approach is that I would just figure out how to present my case within the time constraints that were forced upon me. The second approach is to file a motion to reset the hearing date, and use the motion to request a date on which the court has ___ hours available to hear the case. Sometimes you can obtain the ideal date by talking to the court coordinator before you file the motion. But sometimes you have to file the motion and set a hearing on the motion to find out what date (if any) would work for the judge. If that motion is denied, then you will be able to use the denial in your appeal (if one is necessary). However, please note that the likelihood that you successfully appeal an adverse ruling on the grounds that you did not have enough time is low. You said: "Do you think it's allowable in family court to do the following: He should prepare 60 minutes of testimony with evidence and exhibits. And maybe he can supplement that by submitting affidavits (with exhibits) on various topics around the facts of this case. Each affidavit is probably 20-30 minutes worth of discussion/testimony on various best interest factors." My initial thought is that it is very dangerous to attempt to submit affidavits in lieu of live testimony. If the opposing party has a lawyer, then there is a high probability that the opposing party will object to the affidavits on the grounds that they are "hearsay," and the objection will likely be sustained if you do not come up with an acceptable argument that the affidavits fit some exception(s) to the hearsay rule. Please note that, " I am submitting these affidavits because you did not give me enough time to present the witnesses, your honor" will not be an acceptable exception to the hearsay rule. It may be a good idea for your friend to pay a lawyer to have a strategy session about how to submit the evidence that your friend has. I have done a few strategy sessions with people how represent themselves, and one of the biggest complaints that they have is that the do not know how to handle themselves when the judge does something that they were not expecting the judge to do. Do-it-yourself folks also tend to be poorly prepared to respond when the other party does something to make life more difficult. A strategy session helps you anticipate what the other party is going to do.
@@damonmoorepage Thank you for taking the time to respond in detail. In terms of the affidavits that he would submit to supplement his 60 minutes of testimony: Those affidavits would be his own sworn statements and his own affidavit...not an affidavit of a third party that cannot be questioned. And I was thinking that if he provided the affidavits 1 to 3 weeks before the actual trial date, that would give opposing council time to read the affidavits and come up with cross-examination questions for him. Do you think this set of facts gets around the hearsay objection you mentioned?
I’ve asked my spouse about exchanging info for discovery and he basically just blows me off and changes the subject or tries to start an argument about a different topic. I haven’t sent my discovery info either because I’m unsure if I should since I know he’s most likely not going to send his and I know the way he operates he’ll act like he doesn’t have anything when he does and just try to take half of what I have based on me sending him all my info. So I’m lost on whether to send it or not.
I run into that situation all the time. I have a couple of questions for you. First, did you send an actual discovery document to him (e.g., interrogatories or requests for production)? Second, did he send an actual discovery request to you? If you and your spouse had informal discussions about exchanging documents, then you should consider creating and sending formal discovery requests. If you have already sent formal discovery requests, then you should consider filing a motion to compel him to answer the requests.
So I emailed him the documents for discovery and mentioned the option of a rule 11 agreement but he basically didn’t address either and completely changed the subject in response and acted like he didn’t understand why I was asking about any of it. I’m familiar with the motion to compel because I recently did one of those for mediation because I also haven’t been able to get him to do that either but it’s also required for our case.
Damon, question for you on child custody trials. It may be a helpful piece of advice for your audience, too. I have a friend in a child custody trial where the judge decided that the trial will only be 3 hours and he only has 75 minutes to present his case. He objected and told the judge that he needs far more than 75 minutes to discuss all the facts and evidence related to the best interests of the children. The judge ignored that and limited him to 75 minutes only (witnesses, cross exam, testimony, etc)
Do you think it's allowable in family court to do the following: He should prepare 60 minutes of testimony with evidence and exhibits. And maybe he can supplement that by submitting affidavits (with exhibits) on various topics around the facts of this case. Each affidavit is probably 20-30 minutes worth of discussion/testimony on various best interest factors. If he testified verbally about all of this, it might take him 4 hours (240 minutes)...but he's limited to 75 minutes We are thinking that he should speak for 60 minutes and provide supplemental affidavits instead of testifying, just because his time is so limited at trial. Are you allowed to submit affidavits to supplement your testimony?
Obviously, it's a broken system when you need hours to have an intelligent discussion about the children's best interests...but a judge limits you to 75 minutes. Also, do you think this is an appealable issue? The appellate courts would have to decide, "did the judge make a decision on the totality of the circumstances, if the judge cut off the litigants from discussing material facts?"
Where (i.e., which state and county) is the case set to take place? My answer is going to depend on your answer to that question.
@@damonmoorepage Great question. It's in Arizona. And I recognize you probably can't speak to Arizona law...and that's ok. Not looking for an "official legal opinion"
As luck would have it, I am actually licensed to practice law in Arizona. However, I do not regularly practice law in Arizona.
What typically happens in one of the counties where I practice is that one of the parties declares (or "announces" to use the county jargon) the number of hours that the party believes the entire hearing will take. Then that announcement will be used to determine what day the hearing will take place. For example, hearings in Travis County, Texas that are three hours or less take place on Wednesday, Thursday, or Friday. Hearings that are longer than three hours take place on Monday.
I have never been in a situation in which I could not get a hearing for the number of hours that I wanted, so I have not had to do any research on how I would deal with that issue.
If I were dealing with a situation like the one that you described, then I would do one of two things. One approach is that I would just figure out how to present my case within the time constraints that were forced upon me. The second approach is to file a motion to reset the hearing date, and use the motion to request a date on which the court has ___ hours available to hear the case. Sometimes you can obtain the ideal date by talking to the court coordinator before you file the motion. But sometimes you have to file the motion and set a hearing on the motion to find out what date (if any) would work for the judge.
If that motion is denied, then you will be able to use the denial in your appeal (if one is necessary). However, please note that the likelihood that you successfully appeal an adverse ruling on the grounds that you did not have enough time is low.
You said: "Do you think it's allowable in family court to do the following: He should prepare 60 minutes of testimony with evidence and exhibits. And maybe he can supplement that by submitting affidavits (with exhibits) on various topics around the facts of this case. Each affidavit is probably 20-30 minutes worth of discussion/testimony on various best interest factors." My initial thought is that it is very dangerous to attempt to submit affidavits in lieu of live testimony. If the opposing party has a lawyer, then there is a high probability that the opposing party will object to the affidavits on the grounds that they are "hearsay," and the objection will likely be sustained if you do not come up with an acceptable argument that the affidavits fit some exception(s) to the hearsay rule. Please note that, " I am submitting these affidavits because you did not give me enough time to present the witnesses, your honor" will not be an acceptable exception to the hearsay rule.
It may be a good idea for your friend to pay a lawyer to have a strategy session about how to submit the evidence that your friend has. I have done a few strategy sessions with people how represent themselves, and one of the biggest complaints that they have is that the do not know how to handle themselves when the judge does something that they were not expecting the judge to do. Do-it-yourself folks also tend to be poorly prepared to respond when the other party does something to make life more difficult. A strategy session helps you anticipate what the other party is going to do.
@@damonmoorepage Thank you for taking the time to respond in detail. In terms of the affidavits that he would submit to supplement his 60 minutes of testimony: Those affidavits would be his own sworn statements and his own affidavit...not an affidavit of a third party that cannot be questioned. And I was thinking that if he provided the affidavits 1 to 3 weeks before the actual trial date, that would give opposing council time to read the affidavits and come up with cross-examination questions for him. Do you think this set of facts gets around the hearsay objection you mentioned?
I’ve asked my spouse about exchanging info for discovery and he basically just blows me off and changes the subject or tries to start an argument about a different topic. I haven’t sent my discovery info either because I’m unsure if I should since I know he’s most likely not going to send his and I know the way he operates he’ll act like he doesn’t have anything when he does and just try to take half of what I have based on me sending him all my info. So I’m lost on whether to send it or not.
I run into that situation all the time. I have a couple of questions for you. First, did you send an actual discovery document to him (e.g., interrogatories or requests for production)? Second, did he send an actual discovery request to you?
If you and your spouse had informal discussions about exchanging documents, then you should consider creating and sending formal discovery requests. If you have already sent formal discovery requests, then you should consider filing a motion to compel him to answer the requests.
So I emailed him the documents for discovery and mentioned the option of a rule 11 agreement but he basically didn’t address either and completely changed the subject in response and acted like he didn’t understand why I was asking about any of it.
I’m familiar with the motion to compel because I recently did one of those for mediation because I also haven’t been able to get him to do that either but it’s also required for our case.