family law basic skills: trial preparation

SECTION 17

Trial Preparation

Presented by

Diane M. Carlton, Esq.

Litvak Litvak Mehrtens & Epstein, PC Denver, CO

Carlton Trial Prep Outline Page 1 of 5

FAMILY LAW BASIC SKILLS COLORADO BAR ASSOCIATION CLE

FEBRUARY 17 and 18, 2011

TRIAL PREPARATION

By Diane Michele Carlton Litvak, Litvak, Mehrtens and Epstein, P.C.

[email protected] I. THE START

Preparation for trial begins with the filing of the domestic case. After the case is filed, case preparation consists of obtaining information to identify and value assets and debts, to determine the income for each party, and to support or defend the parties’ positions for allocation of parental responsibility.

1. Utilize disclosure and discovery procedures to obtain necessary information to establish or support the relief requested by your client.

2. Retain expert witnesses as may be needed to value assets or to conduct

parenting and/ or vocational evaluations.

3. Interview potential witnesses-both favorable and unfavorable.

4. Anticipate and develop evidence to counter the positions and strengths of the opposing parties’ case. II. SETTLEMENT OR TRIAL

When all the necessary information has been obtained and the valuations are completed, the case is ready for settlement. Settlement should always be attempted. If settlement negotiations are unsuccessful, then preparation for trial begins. Even when preparing for trial, settlement should always continue to be considered. It is a common occurrence for cases to settle close to the trial date or in the middle of trial preparation or on the proverbial courthouse steps. III. TIMELINE AND STEPS TO PREPARE FOR TRIAL

1. Read the current trial management order entered by the judge in the case, if such an order has been entered. Most of the Denver metropolitan courts enter orders specific to their division. Make sure the requirements contained in the order have been satisfied. Judges will dismiss or continue cases if the trial management requirements have not been completed.


2. Identify the issues relevant for trial.

a. Determine the theory of the case. (i.e. a homemaker who needs to be retrained for the work place) Make sure all the positions in the case are consistent. b. Review the statutory elements and case law which apply to the to the disputed issue(s). Match the evidence to the elements needed to support the requested relief. c. If evidence does not counter, support or advance the requested relief in the case, do not use it in trial.

3. File witness disclosure statements 60 days before trial. C.R.C.P. 16.2 (e)

(3)

4. Submit expert witness reports to the opposing party 60 days before trial, C.R.C.P 16.2 (g) (5), except as noted below:

a. Child and Family Investigator reports do not have a statutory deadline for completion. b. Allocation of Parental Responsibility reports are due 20 days before hearing. C.R.S. 14-10-127 (3) c. Rebuttal reports are due 20 days after receipt of an expert report d. Note: Reports from joint experts are admitted into evidence without further foundation, UNLESS an objection is noted in the Trial Management Certificate. C.R.C.P. 16 .2 (g) (1) (C)

5. Update asset values and debt balances, Sworn Financial Statements, and

disclosure and discovery responses. Provide updated disclosure and discovery responses to the opposing side. C.R.C.P. 16.2 (e) (3)

6. Submit a Joint Trial Management Certificate 10 days before hearing.

C.R.C.P. 16.2 (h) 7. Issue subpoenas for or obtain waivers of service from witnesses. C.R.C.P.

45

a. Subpoenas must be served at least 48 hours before appearance of the witness. b. Include a check for travel costs with the subpoena. C.R.S. 13-33-102


c. Provide opposing party with copies of subpoenas or waivers of service. C.R.C.P. 45 (c) d. Determine whether a certificate of self-authenticated record can be used in place of a custodian of records. C.R.E. 902 (4) e. A witness may be able to testify by telephone instead of in person. A motion for absentee testimony must be filed. C.R.C.P. 43(i).

8. Select exhibits.

a. Prepare exhibit books-one each for the court, opposing counsel, yourself and the witness chair. Each exhibit should be labeled.

b. Exhibits are labeled with numbers for Petitioner and letters for Respondent. Documents exceeding one page should be numbered within the letter of number. (i.e. A-1, A-2, etc)

c. Exchange exhibits 10 days before hearing. C.R.C.P. 16.2 (h)

9. Prepare a written list of stipulations or a Partial Separation Agreement, if

appropriate.

10. Research case law and statutes as appropriate. Consider preparing a trial brief.

11. Identify evidentiary issues and review Colorado Rules of Evidence relevant to the issues.

a. The filing of a motion in limine will allow the court to rule on an evidentiary matter in advance of trial. Such motions can be used to limit or exclude testimony and/or evidence.

b. Motions in limine are authorized to be filed without obtaining the consent of court. C.R.C.P. 16.2 ( c) (4)

12. Meet with the client, and or witnesses to prepare them for trial.

a. Advise the client as to appropriate dress, conduct in the courtroom, and course of trial.

b. Go over the testimony to be elicited from the client on direct examination, and prepare the client for anticipated issues to be raised in cross examination.


13. Have a back up plan. Evidence will be presented in trial differently than anticipated before trial. Court rulings may change the trial plan. Anticipate these changes as much as possible and have an alternative plan and evidence ready for presentation.

14. Petitioner should prepare a proposed form of Decree of Dissolution of Marriage.

15. Prepare proposed findings and orders if required by the Court, or as a trial strategy, if not required. IV. FORMS

Forms for domestic cases such as Separation Agreements, Parenting Plans, Child Support Worksheets, Sworn Financial Statements, Child Support Worksheets, Subpoenas, Decrees and Support Orders can be found on the state court website www.courts.state.co.us,selfhelp/forms/index.cfm or in court self help centers. V. TRIAL ISSUES UNIQUE TO DOMESTIC RELATIONS

1. Court reporters. Court reporters are usually not present in the courtroom. Recorders are used to record the testimony and proceedings. Some special considerations for counsel are to make sure the recorder is actually running, and to stand next to a microphone when speaking. Be sure to keep a record of the exhibits, as having an accurate record of the admission and exclusion of exhibits will be valuable for many purposes during and after trial.

2. Evidence.

a. The divorce court is a court of equity, and accordingly the rules of evidence are often disregarded. Prepare your evidence and objections using both the Colorado Rules of Evidence and equitable considerations. b. The use of a marital balance sheet is a must in a case with more than one asset or debt. If the court chooses your balance sheet to work with during the trial, your client is ahead of the game.

3. Time difficulties. The Courts often limit the time for hearing, particularly at temporary orders or emergency hearings.

a. Some courts proceed by using offers of proof. Know this fact in advance and plan accordingly. b. Since time is limited, make efficient use of time by reaching as many stipulations as possible, check with opposing counsel to


determine if written offers of proof may be acceptable and consider using summary exhibits. c. Sometimes the available time for hearing will expand. For this reason, it is best to prepare your case for a hearing within the time limits imposed by the courts and also for a longer time.

VI. Attached forms to assist in trial preparation.

1. Divorce Issue checklist 2. Exhibit checklist 3. Marital Balance Sheet 4. Sample Exhibit List for Trial 5. Non-Contested Permanent Orders checklist

Carlton Trial Prep Outline Divorce Issue checklist

CHECK LIST OF DIVORCE ISSUES

1. DECISION MAKING FOR CHILDREN a. Shared, sole or allocation of components

b. Medical, educational and religious matters, extra curricular activities? 2. PRIMARY RESIDENTIAL PARENT 3. PARENTING TIME (visitation) a. General - reasonable & liberal or defined b. Supervised or unsupervised c. Number of overnights (greater than 92 use child support worksheet B) d. If defined- include time, location, & days e. Holidays - list and divide f. Vacations - summer - parents’ and child(ren)’s school g. Birthdays -parents’ and child(ren) h. Mother’s day and Father’s day i. Grandparent(s) visitation j. Seat belts, car seats, no alcohol or drug consumption k. Transportation and location for parenting changes l. Change by mutual agreement 4. CHILD SUPPORT a. Documents needed from the parties to support amount 1. Sworn Financial Statements 2. child support worksheet(s) 3. income tax return(s), paystubs 4. other adjustments to worksheet(s)-daycare, health insurance 5. payment through court registry – who pays registry fee(s) 6. wage assignment or payment directly to receiver 7. other child deductions 8. modification from guidelines - must have basis

9. number of overnight visits (worksheet A or B) b. Determine income of parties 1. wages, including overtime if required by employment 2. regular gift income 3. personal expenses reimbursed by employer 4. retirement income 5. business income-K-1’s, retained earnings in chapter S corp, draws 6. many other possible sources- see C.R.S. 14-10-115 (7) c. Adjustments to child support worksheets

1. child care costs 2. health and dental care premiums


3. transportation expenses 4. extraordinary educational expenses d. Future modifications 1. Date to exchange documents 2. Documents to be exchanged 3. Do parties calculat on their own? 5. CHILD SUPPORT OR SPOUSAL MAINTENANCE ARREARAGE a. Amount b. Payment through court registry or direct to party c. Reduce to judgment or payment schedule d. Interest-12% for child support, 8 % for maintenance 6. PROPERTY a. Separate property to be set aside (increase during marriage is marital)

b. Personal Property (electronic equipment, clothes, books, furniture, tools, sports equipment, etc.)

c. Real Property (commercial properties, residences, vacant land, condos, time-share interests, etc.)_

d. Vehicles ( cars, boats, trailers, ski jets, campers, planes, motorcycles, etc.) e. Financial interests (stocks, stock options, bonds, U.S. savings bonds,

debentures, bank accounts, mutual funds, promissory notes, monies owed from others)

f. Retirement plans including IRAs, PERA, 401(k)s, 457’s, 403(b)s, military retirement, defined benefit plans, government pensions

g. Deferred or prepaid monies-taxes, security deposits, accrued sick and annual leave, early out bonuses, bonuses, contingent interests, health savings accounts

h. Business interests-corporate, partnership and sole proprietorships i. Collections- art, antiques, coins, baseball cards, dolls, etc. j. Life insurance with cash value h. Trusts i. Other-country club memberships, royalties, oil and gas and mineral

interests, water rights, frequent flier miles, pending lawsuits j. Children’s assets (who will manage)

7. DEBTS a. Car loan(s)/ lease - if leased, refund of up front payments b. Home Mortgage(s) - stays with property c. Business loan(s) d. School loan(s) e. Bank loans, lines of credit f. Loans from organizations or individuals g. Credit cards h. Any other debt obligations


8. FEES AND COSTS a. Attorney’s fees b. Allocation of Child and Family Investigator and/or parental evaluator fees c. Payment of expert witnesses d. Paternity blood testing costs 9. MAINTENANCE a. It no award, must be an affirmative waiver for present and future

b. Amount –set or declining (if declining check for recapture tax problems) c. Duration/conditions of termination d. Security for maintenance - life insurance, or provision in will e. Contractual/non modifiable or traditional modifiable f. If modifiable- under C.RS. 14-10-114 or 122 10. TAXES a. Amount of delinquent state or federal taxes b. Allocation of past due taxes c. How to divide prior or future state and/or federal tax refund d. Child dependency exemption(s) e. Capital gains taxes f. Payment of other taxes due and owing (example: property taxes)

g. Allocation of tax deductions for current year (mortgage and property taxes. interest, etc.)

h. If close to end of calendar year, file agreement that year or in next year 11. CATASTROPHIC EVENTS

a. If either parent dies then the other parent gets child(ren) unless parental rights are terminated

b. Who gets child(ren) if both parents die simultaneously? c. Do the parents have wills? If so, who are the beneficiaries, guardians and

conservators? 12. MEDICAL INSURANCE/UNINSURED EXPENSES a. Medical b. Dental c. Orthodontic d. Vision e. Counseling/Therapy sessions f. Who pays premiums, co-payments, deductibles, uncovered amounts and uninsured amounts? g. COBRA-cooperation from primary insured h. Procedures for reimbursement-timeline to submit receipts and for payment I. Items to be reimbursed-extraordinary under statute? 13. LIFE INSURANCE


a. Award of policy b. Serviceman’ s Group Life Insurance for military

14. EXTRAORDINARY EDUCATIONAL EXPENSES a. Private school costs b. Special needs/tutors c. Technical School 15. POST-SECONDARY EDUCATION a. Cannot be court ordered-by agreement of parties only b. Conditions-age or attainment of degree, satisfactory GPA c. Tuition, fees, room and board, other costs, transportation 16. RELOCATION OF CHILDREN OUT OF STATE a. Conditions and or/terms of agreement for future move(s) b. Prohibition unless consent given by court or other party 17. RESTORATION OF FORMER NAME a. Name to be restored b. Statement-not for purpose of defrauding or misleading 3rd parties 18. FUTURE DISPUTE RESOLUTION a. Mediation, arbitration, parent coordinator/decision maker b. Payment of costs c. Issues-some or all issues or exclusion of emergency and contempt

Carlton Trial Prep Outline Exhibit checklist

EXHIBIT CHECKLIST ASSETS AND DEBTS account statements to show current values and debt balances account statements to show value of separate assets at acquisition valuations, appraisals, expert witness reports on values list of personal property; with values and/or proposed division INCOME paystubs, employment contracts tax returns; W-2 and 1099 statements bank records/check registers showing deposits and amount of expenditures financial statements and loan applications vocational evaluations Sworn Financial Statements medical or psychological records for claim of disability resumes or job applications to establish work history net spendable income schedules AFFIDAVIT OF ATTORNEY’S FEES (if requesting an order for an award of attorney’s fees) RELEVANT PLEADINGS AND ORDERS (include because the court file is often incomplete or voluminous) CERTIFICATES OF SELF AUTHENTICATED RECORDS -C.R.E. 902 (4) SUMMARY EXHIBITS (see requirements of C.R.E. 1006) Expenditures for many purposes, including dissipation of assets Income history or income stream Children’s medical and or extra curricular expenses Monies and or expenses paid by one party as support Arrears for child support and/ or maintenance payments Records of job search, if unemployed Marital balance sheet with proposed division of assets PARENTING ISSUES Child and Family Investigator/Allocation of Parental Responsibilities Report School records-academic or attendance Medical records Child support worksheets Calendar showing parenting time history Proposal for parenting time

Carlton Trial Prep Outline Exhibit checklist

IMPEACHMENT-SOURCES OF CONTRADICTORY STATEMENTS Inconsistent statements made by the other party or witness Police reports Prior Sworn Financial Statements from this case or previous divorce cases Responses to Interrogatories and Request for Production of Documents Verified motions or affidavits from the opposing party or witnesses Deposition transcripts Transcripts of testimony from prior hearings

IRM

SM

ITH

M

arita

l Bal

ance

She

etPa

ge 1

Carlt

on T

rial P

rep

Out

line

Mar

ital B

alan

ce S

heet

IRM

: Sm

ith

A

SSET

SD

escr

iptio

nSO

UR

CE

Am

ount

Hus

band

's W

ife's

REA

L ES

TATE

Add

ress

appr

aisa

l11

1,11

1 re

duct

ions

to e

quity

1st M

ortg

age

and

HEL

OC

(100

,001

)N

et e

quity

11,1

10

Add

ress

estim

ate

100,

000

redu

ctio

ns to

equ

ityM

ortg

age

(99,

900)

Net

equ

ity10

0 10

0 V

EHIC

LES

1995

Cad

illac

(W)

10,0

00

redu

ctio

ns to

equ

itylo

an(5

,000

)N

et e

quity

5,00

0 20

04 M

erce

des (

H)

H's

SFS

65,0

00

redu

ctio

ns to

equ

itylo

an(6

0,00

0)N

et e

quity

5,00

0

BAN

K A

CC

OU

NTS

US

Bank

XX

XX

(Jt)

12/3

1/10

1,00

0 50

0 50

0 U

S Ba

nk X

XX

X(J

t)stm

t 12/

31/1

050

25

25

FU

RN

ITU

RE

& H

OU

SEH

OLD

G

OO

DS

Wife

's re

siden

ceD

ivid

e in

ki

ndH

usba

nd's

resid

ence

Div

ide

in

kind

INSU

RA

NC

EM

utua

l of O

mah

a X

XX

25,0

00

25,0

00

RET

IREM

ENT

AC

CO

UN

TSIR

A - U

S Ba

nk x

xx(w

)stm

t 12/

31/1

02,

500

2,50

0 IR

A Ch

arle

s Sch

wab

(h)

stmt 1

2/31

/10

2,50

0 2,

500

INV

ESTM

ENTS

Schw

ab x

xx(jt

)stm

t 12/

31/1

025

,000

25

,000

OTH

ER A

SSET

S

77,3

6033

,125

44,1

35D

EBTS

Visa

xxx

x (jt

)stm

t 12/

24/1

0(5

,000

)(5

,000

)A

mEx

xxx

x(jt)

stmt 1

2/15

/10

(5,0

00)

(5,0

00)

TOTA

L A

SSET

S LE

SS D

EBTS

$67,

360

27,1

25.0

039

,135

.00

DISTRICT COURT, DOUGLAS COUNTY, COLORADO Court Address: Douglas Combined Courts 4000 Justice Way, Suite 2009 Castle Rock, CO 80109 (303)663-7200 Petitioner: JOE SMITH and Respondent: JANE SMITH Attorney for Petitioner: Litvak, Litvak, Mehrtens, & Epstein, PC Diane Carlton, #8013 1900 Grant Street, 5th Floor Denver, CO 80203 Phone: (303) 837-0757 Fax: (303) 839-9826 [email protected]

▲COURT USE ONLY ▲ Case Number: 09DR0000 Div.: 3

PETITIONER’S EXHIBIT LIST

# DESCRIPTION OFFERED OBJECTN STIP RECVD REFUSED

A Paystubs for Petitioner for 2010

B W-2 forms for 2010 for Petitioner

C W-2 forms for 2010 for Respondent

D Interrogatories and Requests for Production of Documents propounded to Respondent

E Petitioner’s Responses to Interrogatories and Requests for Production of Documents and updated disclosures

F Respondent’s Sworn Financial Statement dated September 28, 2010

Carlton Trial Prep Outline Exhibit list - trial

2

# DESCRIPTION OFFERED OBJECTN STIP RECVD REFUSED G Petitioner’s Sworn Financial

Statement dated September 15, 2010

H Affidavit for Attorneys Fees for Petitioner

I Kelly Blue Book valuation for vehicles

J Marital Balance Sheet K Parties Joint 2009 tax return L M N O P Q R S T U V W X Y Z

Carlton Trial prep Non-Con Checklist

NON-CONTESTED PERMANENT ORDERS HEARING Documents to be presented to Court

1. Separation Agreement, marked as exhibit 1 2. Parenting Plan (if separate from Separation Agreement) 3. Sworn Financial Statements for both parties 4. Decree of Dissolution of Marriage 5. Child support worksheet, if appropriate 6. Support order- for payment of child support or maintenance 7. Self-addressed stamped envelope for return of conformed decree and support

order (with 4 copies of each document) unless documents will be returned electronically

Examination of Petitioner Please state your name, and spell it for the recorder. Are you the Petitioner in this dissolution of marriage action? Are you married to the

Respondent,? Is the Respondent here today? (If so) Would you identify him by where he/she is sitting? (If not) Was he aware of the hearing today? How do you know that? What was the date of your marriage to the Respondent? And the place? When did you separate? Is your marriage to the Respondent irretrievably broken? Is there any hope of reconciliation? Were you a resident and domiciliary of the state of Colorado for at least 90 days prior to filing this action? Were there any children born or adopted during the marriage? Please tell the court the children’s names and birthdates. (woman) Are you expecting another child at this time? (man) To the best of your knowledge, is your wife expecting a child at this time? Are you requesting restoration of your former name? If yes what is the name, and spell it for the recorder. Will the change of name defraud any creditor or third person? Are you asking the court to grant a dissolution of marriage at the conclusion of the hearing today?

Carlton Trial prep Non-Con Checklist

Did you hear the agreement read into the record? Or have you read the document titled Separation Agreement, which is marked as exhibit 1? Is this the separation agreement that you signed-is that your signature on page ___? Is that your spouse’s signature (if absent) on page_____. Is this your agreement? Do you understand it? Do you have any questions about it? Did you enter in the agreement freely and voluntarily? Has anyone coerced you or pressured you into to signing it? Have you been represented by counsel throughout this case? Are you satisfied that you have been fully advised about your rights in this matter? Are you aware that you have a right to proceed to a hearing and ask the court to enter orders on the matters contained in this Separation Agreement? Have you decided to waive your right to trial at this time and enter into the agreements contained in exhibit 1? Are the parental responsibility arrangements set forth in the Separation Agreement (or Parenting Plan) in the best interest of your minor children? (If this party is waiving maintenance) The Separation Agreement provides that you will waive maintenance, which is spousal support. Do you understand that if you waive maintenance, you have waived it now and forever? In other words, you cannot ever come back to court for any reason after today and request maintenance. Knowing that, do you still agree to waive maintenance? Taken as a whole, are the terms of the Separation Agreement fair and not unconscionable to you, the Respondent and your minor children Are you requesting that the court approve the terms of the Separation Agreement? Your honor, I have no further questions.