In this second post of our 4-part series on going to trial, I want to talk about the types of trial you can have.
I have written a lot about settling cases (since that’s how over 95% of cases end) but I know you may be like other Rogue Family Law customers who are by an uncooperative spouse, co-parent or domestic partner. (I’ll use the term “partner” in this post to shorten things up).
I’ve written more about different ways to settle cases in other posts, see:
- What if we can’t settle our case and I don’t have a lawyer for the trial?
- How Your Judge Can Help You Move Your Divorce Case Forward
- How Judges Can Help You Get Short-Term Relief
- Why You Should Budget Your Family Law Case Like A Vacation
Chances are you’ll be in the majority of cases that settle out of court even if it doesn’t seem like your situation will end up in settlement now. That’s because even an unreasonable partner may see the light and decide to compromise to get some things to avoid losing it all by a judge who sees things differently.
Adding to your frustration may be fear about what you don’t know about trials. As I often recommend, the best cure for this is to go to court and watch someone else’s trial so you can take some of the mystery out of it. Since trials are getting rarer and rarer, you may just want to spend a day watching weekly “motion calendars.”
(Motions are like mini trials so you can get an idea of what to expect if you’re in a county with very few trials).
But let's say you still think you'll need to go to trial in your case rather than mediation and settlement. If so, then you have four options available to you in Oregon.
What is a Trial?
You probably know the word "trial" and likely also know what it means. But just to be sure, let’s define "trial" as the process used to decide legal cases when people can't agree.
During a trial, both sides present their case to a judge, who listens to the facts and then decides your case.
There are different kinds of trials in Oregon family cases:
Option 1: Traditional Trial with Lawyers
In this type of trial, you and your partner each have a lawyer. Your lawyer will present your case to the judge, and your partner’s lawyer will do the same.
Most of the trial involves listening to lawyers, witnesses, and the judge. You might also be a witness.
The trial follows a specific structure and set of rules:
- Opening Statements: Each side gives a short version of their case, including basic facts and desired outcomes.
- Presentation of Evidence:
- Questioning Witnesses: Witnesses talk about the facts of the case, including details about children, property, and finances.
- Presenting Evidence: Documents, photos, recordings, etc., are shown to the judge as "exhibits."
- Closing Arguments: Each side summarizes their case and argues why the law supports their position.
- Judge’s Decision: After the trial, the judge decides the outcome.
Due to how much time, communication, and work involved on all parts, this is the most expensive option.
Option 2: Traditional Trial without Lawyers
The process is the same as a traditional trial with lawyers, but you and your partner represent yourselves. The rules and procedures still apply, which can be frustrating without legal training. For example, you can’t just give the judge a letter from a friend; the person must testify in court because of the “hearsay” rule.
This option is far cheaper, but you risk facing unforeseen consequences because you don't know what you don't know.
If you're considering going without a lawyer, then consider Arbitration and Informal Trials (IDRT) if you can't agree by mediation and settlement.
Option 3: Arbitration
In arbitration, a lawyer or retired judge (not a current judge) hears your case.
You and your partner must agree on who the arbitrator will be. The arbitrator isn’t strictly bound by the rules of evidence but does give you a binding decision.
Arbitration is only available in family law cases about dividing property; it can’t be used to decide parenting or support cases.
Although arbitration is supposed to be faster and less expensive, it does involve fees including for the arbitrator's time.
Option 4: Informal Trials
Informal trials, such as Oregon's Informal Domestic Relations Trial, fall between arbitration and traditional trials. They were created to make it simpler and easier for people without lawyers to get a divorce or decide family cases.
In an informal trial, you'll talk directly to the judge instead of answering a lawyer's questions. The rules of evidence don’t apply, so you can present any evidence you want. The downside is that you usually can’t call witnesses unless they are experts like property appraisers or accountants AND you get prior approval.
These changes mean that these trials are faster and less expensive, and the judge will write the judgment for you. Both sides must agree to an informal trial by signing a form giving up the right to a formal trial.
Informal trials can be used for divorces, parenting cases (custody, parenting, child support), or modifications of judgments.
At Rogue Family Law, we provide a Legal Orientation, a Going to Trial Workshop, and Legal Consulting which can help you prepare for an Informal Trial in Oregon. We also have our breakthrough Document Portal which helps you create legal documents the easy way, letting you create custom court documents by filling out a simple questionnaire. Contact us to learn more about your options.
Conclusion and Next Steps
Understanding the type of trial you're facing helps you prepare better. Knowing the process can make it less overwhelming and increase your chances of a favorable outcome.
And don’t forget to go to the courthouse and watch a few trials or hearings. The more familiar the process, the less intimidating it will be when it’s your turn.
And when you're ready to get one-on-one and on-demand education and assistance with your case, contact us. We can't go to court with you, but we can make it so that you feel informed, supported, and empowered in your case. Apply today to learn more.