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TRIAL OF A FAMILY LAW CASE: DIVORCE, PATERNITY, CUSTODY ETC. |
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Is it likely that my case will go to trial? |
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Will the case be tried by a jury? |
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How long does it take to get a case to trial? |
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What are the significant steps in preparation for trial? |
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What are opening statements? |
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How does my lawyer prepare for a trial? |
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What is the difference between direct examination and cross examination? |
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Is only what is testified to by a witness important, or is demeanor also significant? |
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When does the judge decide the case in her or his mind? |
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What are closing statements? |
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Can I appeal if I do not like the judge's ruling? |
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| Q: |
Is it likely that my case will go to trial? |
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No. About 95% of all cases that are filed in court are settled. This includes family law cases such as divorce, custody* and paternity. When the parents do not agree on who should have custody of the children, my experience is that these cases are more likely to go to trial than other cases. (*While most custody cases are settled, the percentage is significantly lower than 95%.) |
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| Q: |
Will the case be tried by a jury? |
| A: |
No. In Illinois, as in virtually every other state, family law cases are decided by a judge. |
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| Q: |
How long does it take to get a case to trial? |
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Cases that are settled have a hearing within a matter of a week or two after settlement and the agreement is signed. If a case is not settled, and must go to trial, in McHenry County and other collar counties and Northeastern Illinois , you are usually looking at between one and two years after the suit is filed before trial starts, largely because of the need for fact gathering ("discovery" ). |
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| Q: |
What are the significant steps in preparation for trial? |
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Discovery and a pre-trial conference. Discovery is the procedure by which you and your lawyer gain the facts that should be brought out at trial. A pre-trial conference is a session, in chambers (judge's office) in which each party, through her or his lawyer, informs the judge the facts of the case, takes a settlement position and backs up that settlement position with the law. The judge usually makes a settlement suggestion. Often a settlement suggestion made by the judge is stated in terms of, "If at trial the facts come out the same way as I understand them to be now, my ruling is likely * * * ."Some judges, on the day of the trial, and immediately before the trial, will call the lawyers in for a last shot at a settlement conference. |
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| Q: |
What are opening statements? |
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Before actual evidence is produced, the lawyers for each party will tell the judge what they expect to prove and what their positions are. |
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| Q: |
How does my lawyer prepare for a trial? |
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Your lawyer should have outlined the testimony of each witness as a basis for questioning the witnesses, and be prepared to cross examine the witnesses who testify for the other side on the basis of depositions of those witnesses. Your lawyer should also have researched the law applicable to your case and have notes, or a memorandum/brief on the law applicable to your case. |
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| Q: |
What is the difference between direct examination and cross examination? |
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In direct examination your lawyer questions you and witnesses called on your behalf. At the conclusion of the direct examination the other lawyer has a right to question ("cross examine") the witness and it is usually done in an attempt to discredit the testimony. |
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| Q: |
Is only what is testified to by a witness important, or is demeanor also significant? |
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A judge passes on the reliability and truthfulness of a witness. This is evaluated not only by the actual words the witness states, but the way he states the words and demeanor (body language etc.) when the witness is testifying. |
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| Q: |
When does the judge decide the case in her or his mind? |
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Ideally after all the evidence has been heard. In jury cases, jurors are instructed by the judges, before the case begins, not to decide the case until they have heard all the evidence, but a study has shown that jurors determine how they are going to decide the case about a third of the way through the evidence. Judges may be a little bit more patient, but I believe that some judges "decide"a case before all the evidence is received, and that judges develop a bias about the case while it is going through its preliminary stages, for example, as a result of a preliminary hearing on such matters as temporary child support, temporary child custody etc. The judge may, at these stages, before trial, start developing a sense of the case, so the judge's decision about the case could be formulated before the evidence is heard. This is the reason that the preliminary stages of a case are highly significant. |
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| Q: |
What are closing statements? |
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After all the evidence has been presented each lawyer summarizes the evidence and argues in favor of the client's position. |
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| Q: |
Can I appeal if I do not like the judge's ruling? |
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Yes, but the odds are against your winning. An appeal is not a new trial. An appeal goes to a different, a higher, court. In Illinois the appeal goes to a three justice court. This court does not hear any evidence. It considers the papers and orders that were filed and entered in the trial court, and considers the transcript of all the testimony that was given and reviews all the documents that were introduced into evidence. The lawyers for each side file briefs in which they summarize the facts and argue the law in favor of the client. Appellate courts much more usually affirm the trial court than reverse it. |
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