Trust & Probate Litigation Attorney

Appearing in Court

Going to court to argue your matter can be very stressful. Even attorneys often have sleepless nights during a trial!
If the professionals who do this regularly can feel the pressure, don’t be hard on yourself when you feel it. That’s normal, and means you’re human. The key for the professionals is that they know the sorts of things to expect, so they can be prepared. This minimizes the stress and allows them to be as effective as possible. This quick guide is intended to help you better understand what to expect, even if you won’t be as familiar as attorneys are.

Understand the Issues

When appearing in court, the judge expects to address specific issues. These issues are defined through the paperwork the parties file with the court. It is imperative that you review the relevant court papers before any court appearance. If you are appearing for a hearing, then review the motion and responsive papers. If you are appearing for a trial, closely review the paperwork termed “pleadings”. Pleadings include, the initial Complaint or Petition, the Response or Objection, and any Reply. Pleadings can also include other court papers, such as a Counterclaim, an Interpleader, and others.

When reviewing the relevant court papers, pay special attention to the following points: 1) What the parties are asking the court to do; 2) The legal theory under which they are asking the court to do what they ask; and 3) The facts they cite as supporting the legal theory. You can argue about any and all of these points. Some of the potential arguments might be about the law, and some might be about the facts. For example, a party might be asking a judge to do something they aren’t actually allowed to do. They might be pursuing a legal theory that doesn’t fit the facts or allow the remedy they are asking for. They might be presenting factual inaccuracies, like omitting important information or alleging facts they don’t actually have evidence for.

Research the law for any legal arguments you want to make, and research the facts you want to present (“evidence”) in support of your arguments. Make a list of all the reasons you think your position is correct regarding each of these 3 main issues. You can have the list with you at court to help you not forget any main points you wanted to make. Remember to keep the list as simple and straightforward as possible. You don’t want to the list to confuse you when you are under the pressure of the actual court proceeding.

Prepare Your Evidence Beforehand

One of the most important things to do before you appear in court, is to review all of your evidence and have it organized so that you can find what you need when you need it at the hearing. There are two basic forms of evidence: 1) Testimony for people (“witnesses”); and 2) Things (“exhibits”). A witness could be a party involved in the lawsuit (including you!), other people who have direct information about what happened, or even experts who are qualified to give a professional opinion about some issue in the case. Exhibits will usually be documents, records, photographs, or even objects.

If you have any witnesses, try to help them be ready. They can get nervous too, and a nervous witness can make mistakes! It can be a good idea to make sure they are prepared for the questions you will ask them and the questions the other side is likely to ask. In order to do this, you yourself need to be ready. Have a list of the questions you expect to ask the witness, including if you need the witness to testify about any exhibits. An age-old rule from attorneys is to “never ask a witness a question you don’t know the answer to”. Make sure you know the substance of how a witness will respond to a question, even if they deviate in how they might present it.

Know the Law Regarding Your Evidence

The theme to preparing for court is: Research! Research! Research!

Research the legal issues from the pleadings.

Research the factual evidence.

Research the law of evidence.

A set of rules has developed to make sure that any evidence being presented is reliable, accurate, and relevant to the legal issues. It’s when a person violates one of these rules that you will hear an attorney proclaim they object. Stating you object is how to tell the judge you think the other side is breaking the rules of evidence. If you say you object, be sure to follow that up with a brief explanation of why you think they have broken one of the rules.

A full set of the rules is called the California Evidence Code, and is set out in statute. For each rule, there is a body of case law interpreting and applying the rule. This can be daunting for non-attorneys, but in general terms, the biggest things to keep in mind are:

  1. All evidence must be relevant to the issues before the court. If it doesn’t tend to make some legal conclusion true or false, then it is not likely to be relevant;
  2. Witnesses are generally only allowed to testify about things they directly experienced first-hand;
  3. The other side always gets a chance to “cross-examine” a witness, to challenge their credibility, etc.

Ask an Attorney

These are only a few of the issues involved in appearing in court. Hopefully this guide will help you to better understand what to expect, but know that there are many nuances and potential pitfalls. As already indicated, research reigns supreme in preparing for court. David J. Hallstrom, Esq. and his trust and probate litigation team are here to help. We bring a broad base of experience and a global perspective to help you achieve effective, practical, and timely results.

Call David J. Hallstrom at (888) 308-1261 to schedule your consultation.

We can help.


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