Divorce, Family Law, and the Legal Process

By Ted Harvatin, Esquire

Exploring settlement
Part of a lawyer's job obviously is to know the law, but only with experience can a lawyer understand the legal process. While individual cases may vary, there are some general concepts that we think you might find helpful to understanding what happens in a typical case.

Parties have the opportunity to avoid, or at least minimize, the unpleasantness, stress and expenses associated with drawn out litigation. This can be accomplished through early negotiations between the parties and/or their attorneys.

Skilled attorneys recognize that clients rarely benefit from jumping into court without first attempting to determine if there is some middle ground that will satisfy both sides. We also inform clients of the risks and benefits of trial versus settlement. Clients can consequently reach decisions on an informed basis.

If settlement fails
Sometimes differences cannot be settled without resorting to the courts. A lawsuit starts by one side (the plaintiff) filing papers (known as a complaint or a petition) at the circuit clerk's office. The circuit clerk is responsible for maintaining all the papers that will eventually be presented to the judge.

The plaintiff or someone representing the plaintiff is responsible for serving a copy of those papers on the party against whom the plaintiff is bringing the case (the defendant or respondent). In a few instances, these papers can be served by certified mail, but most typically service is accomplished through a private process server or a member of the county sheriff's staff.

After being served
The defendant has a certain amount of time, usually 30 days, but sometimes slightly more or less, to file a written response to the complaint. Both the complaint and the response (or answer) are general in content. They are simply intended to provide the court and the parties with a very broad outline of the issues.

Discovery
After the complaint and answer are on file, each side is entitled to engage in pre-trial fact-finding (known as discovery) to determine the strengths and weaknesses of the other side's case and to review any relevant documents that might be in the other side's possession or in the possession of third parties.

Very rarely do trials operate with surprise witnesses or witness stand confessions or some of the other dramatics that one might observe from watching television or movies. By the time discovery has been completed, each side should have a good understanding of the other side's evidence.

There are two general types of discovery, written and spoken. One form of written discovery is done through the use of interrogatories, which are written questions each side submits to the other for response. Written discovery also includes requests directed to the other side to produce specified documents.

Oral (non-written) discovery is accomplished by way of depositions. The party who is to be deposed (questioned) is put under oath and the questions posed and the answers given are recorded by a stenographer and later typed up. This process occurs outside the courtroom with the stenographer, the attorneys and the people involved in the lawsuit being the only ones present.

Before the case is ready for trial, there are other steps in which the attorneys may engage from time to time such as filing motions asking the judge for some sort of relief. In most instances, only the attorneys attend motion hearings.

Whenever a lawyer wishes to present a motion (request) to the judge, other than during the actual trial, the attorney must contact the judge to obtain a hearing date. A reasonable time before the hearing, the attorney is required to provide the opposing attorney with written notice of the date and time that the attorney intends to present the matter to the judge.

It is improper for an attorney to contact a judge and ask for relief without giving the other side advanced notice and an opportunity to present a response. Since court hearings should be coordinated with the schedules of all the attorneys as well as the judge, there is often a delay before a matter can be presented to the judge.

Trial
After all the discovery and motions have been completed, a trial, which occurs in the courtroom, follows. It may be a trial by jury or a trial before only a judge (known as a bench trial), depending upon the type of case and what the parties have requested. Parties to a divorce are not entitled to a jury.

The plaintiff's evidence is presented first. After the plaintiff's presentation is completed, the defendant has an opportunity to present evidence. "Evidence" includes witness testimony (including testimony from the parties to the case) and physical items such as documents, drawings and photographs. Each witness that a side calls to the stand to testify is subject to questioning by the other side's attorney, a process known as cross-examination.

In a jury trial, at the conclusion of the case, the jury deliberates until it reaches a unanimous decision. That decision (verdict) is announced in open court to the parties and their lawyers. In a bench trial, except in the simplest of cases, the judge ordinarily takes the case under advisement and later provides the attorneys with a written decision.

Due to the time required to conduct pre-trial discovery, including submitting and responding to interrogatories and document requests and taking depositions, not to mention the difficulty of obtaining available court time, litigation (lawsuits) may not move forward as rapidly as many litigants would prefer. The law is often a messy and slow-moving process because of the rights and protections afforded everyone.

The procedures outlined apply to the vast majority of cases that result in lawsuits. Of course, even after suit is filed, the parties may reach a settlement.

Other types of cases, such a worker's compensation arbitration hearings, social security hearings and driver's license reinstatement matters, are somewhat different. However, the general concept in those types of cases is the same as other court cases, in that no action is ordinarily taken in the presence of the judge without all parties being given an opportunity to be heard.

Appeals
Anyone not satisfied with the outcome of the case has an automatic right to one appeal at the appropriate time. The important fact to keep in mind about appeals is that except in extremely rare circumstances, the appeals court does not hear any testimony or consider any evidence that was not presented at the trial.

Rather, the appellate court limits itself to reviewing all the papers and testimony produced at the trial. The court then decides if the judge (and the jury, when applicable) followed the law.

Appeals are quite involved and require the lawyers to file written, detailed briefs and later argue those briefs before three judges of the appeals court. The entire appeals process may take 9 to 12 months to complete and often longer in worker's compensation cases.

Appeals beyond the appellate courts are presented to the Supreme Court. An appeal to the Supreme Court is not automatic in the vast majority of cases. It is entirely within the Supreme Court's discretion whether to accept a case for appeal. It is difficult to obtain Supreme Court review.

After all appeals are exhausted, the decision becomes final.

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ABOUT THE AUTHOR
Theodore J. Harvatin is an established attorney in Springfield, Illinois. A graduate of the University of Illinois College of Law, Mr. Harvatin was admitted to the Illinois Bar in 1981. Mr. Harvatin is available to serve clients throughout central Illinois.

He can be contacted by phone at (217) 525-0520 or email him at ted@harvatinlaw.com or visit his web site at www.harvatinlaw.com