Summer 2015, Issue 3

Orange County Committee: Anatomy of a Trial Presentation

The first installment of the four­-part “Anatomy of a Family Law Trial” series hosted by the Orange County Chapter of Association of Family Law Specialists took place on April 27, 2015, at Whittier College of Law in Costa Mesa. Entitled “May it Please the Court,” it featured Stephen Kolodny, CFLS, Thomas Stabile, CFLS, and the Honorable Thomas Trent Lewis lecturing on discovery, pre­trial motions and opening statements.

The in­-depth, two-­hour presentation included the following topics: pre­trial rules and procedures, use of discovery at the time of trial, securing witnesses and documents, planning for witness voir dire, motions in limine, presumptions, burden of proof, and opening statements do’s and don’ts. Among the practical pointers that the attendees learned were the following:

  • Any motions in limine should be made in writing pursuant to Rule of Court 3.20(b)(1), and should include a proposed order as well as points and authorities. It must also articulate the items that are to be included and the grounds upon which it is sought to be excluded. The motion in limine should also include a proposed order that counsel inform all witnesses of the exclusion of evidence pursuant to said ruling. The more common areas where a motion in limine is used in family court are as follows: to define the scope and nature of an expert opinion, to exclude undisclosed witnesses or exhibits, to exclude valuation date testimony where there is no request for an alternate valuation date, to exclude evidence barred by discovery rules or by a sanction order, and to exclude illegally obtained evidence.
  • Common problems with the content of an opening statement are when attorneys overpromise or underperform. If the opening statement overpromises or the attorney underperforms in trial compared to what was promised in the opening statement, the attorney’s credibility is compromised. Instead, the opening statement should present the theme of the case and avoid the presentation of argument.
  • “Extremely high risk” strategy that is not encouraged during trial includes the following: tendering undisclosed exhibits or unnamed witnesses, disobeying pre-trial orders, and unduly relying on rebuttal evidence or evidence that may not be properly supported as impeachment evidence.
  • Rule of Court 5.394 establishes a statewide format for the preparation of trial briefs. The trial brief should also include proposed findings and orders, along with a statement of contested issues and the theme of the case.
  • A party opponent’s deposition may be used for any purpose at trial pursuant to Code of Civil Procedure Section 2025.620. The deposition and other forms of discovery should be lodged prior to trial. Prior to using a deposition transcript at trial, one should ascertain whether corrections were made to the transcript or not, pursuant to CCP 2016.030. The deposition transcript may also be used as former testimony of a party pursuant to Evidence Code Section 1291.

See “Upcoming Chapter Programs” in this journal for future programs in this series. The first and second (“Tender the Expert… Direct and cross­-examination of expert witnesses,” presented by Steven E. Briggs, CFLS, Phillip G. Seastrom, CFLS, and the Honorable David S. Weinberg (Ret.)) installments of the series are available for purchase through the ACFLS Internet Website. ■