SECTION 17
Trial Preparation
Presented by
Diane M. Carlton, Esq.
Litvak Litvak Mehrtens & Epstein, PCDenver, CO
Carlton Trial Prep OutlinePage 1 of 5
FAMILY LAW BASIC SKILLSCOLORADO BAR ASSOCIATION CLEFEBRUARY 17 and 18, 2011
TRIAL PREPARATION
By Diane Michele CarltonLitvak, Litvak, Mehrtens and Epstein, P.C.dcarlton@familyatty.comI. THE STARTPreparation 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 necessaryinformation 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 TRIALWhen all the necessary information has been obtained and the valuations are completed,the case is ready for settlement. Settlement should always be attempted. If settlementnegotiations 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 TRIAL1. 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 ordersspecific to their division. Make sure the requirements contained in the order have beensatisfied. Judges will dismiss or continue cases if the trial management requirementshave not been completed.
Carlton Trial Prep OutlinePage 2 of 5
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 thecase are consistent. b. Review the statutory elements and case law which apply to the tothe disputed issue(s). Match the evidence to the elements needed tosupport the requested relief.c. If evidence does not counter, support or advance the requestedrelief 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 statutorydeadline 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 reportd. Note: Reports from joint experts are admitted into evidencewithout further foundation, UNLESS an objection is noted in the TrialManagement Certificate. C.R.C.P. 16 .2 (g) (1) (C)5. Update asset values and debt balances, Sworn Financial Statements, anddisclosure and discovery responses. Provide updated disclosure and discovery responsesto 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.45a. 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
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Family Law Basic Skills: Trial Preparation
Diane M. Carlton, Esq. prepared and presented this Trial Preparation section of the Family Law Basic Skills program held by CBA-CLE in February 2011. This is for educational purposes only. It is not a substitution for legal advice.
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