Achieving success in court requires more than one’s personal sense of fairness and common sense. Success in court requires in depth knowledge of the written and unwritten procedural rules, the local benches’ current trends, the case law, opposing counsel, the required quantity and quality of evidence, and general strategy.
Clients sometimes ask me: “Do I have to hire a lawyer to handle my divorce?” My response is: “I am certain you can change your automobile’s breaks without hiring an experienced licensed mechanic, but do you want to live with the consequences if you have made an error?”. Success in court can only be achieved with the knowledge of the subtleties, and required experience.
The Case Conference
The Case Conference is the first court proceeding. Both parties are required to attend, together with their counsel, in front of a judge.
Relative to other court appearances, the case conference is informal. Its sole purpose is to attempt to achieve a settlement without further litigation. When this is not possible, the case conference is often used as a venue to obtain procedural orders such as orders for the disclosure of documents, or questioning of the parties.
The case conference judge will often give his or her opinion on the issues. However, the judge does not have the jurisdiction (or the right) to make an order on the substantive issues, unless both parties agree.
Thus, the case conference is an opportunity for both parties and their lawyers to assess the strengths and weaknesses of their respective positions.
A motion is often referred to as a “band aid” proceeding. The purpose of a motion is to obtain a ‘temporary’ order, until the matter is determined on a final basis.
Unlike the case conference, where the judge cannot make a decision on the core issues, without the parties’ consent, a motion judge will make a decision at a motion.
The judge will make his or her decision based solely on written evidence presented by way of affidavit, and oral submissions by the parties’ counsel.
Motions are typically 30 minutes to 2 hours in length. The successful party may be entitled to an order for the payment of, part or all, of his or her legal fees.
The Settlement Conference
Similar to a Case Conference, at the settlement conference, a judge again attempts to assist the parties in coming to a mutually acceptable compromise, without going to a full-fledged trial.
To learn more, contact me at 613.841.9099 and schedule a free, confidential, initial consultation.
The judge will encourage parties to settle, often by forecasting the most likely outcome if the matter proceeds to trial. If the matter does not settle at the settlement conference, it will be listed for trial. It typically takes at least 6 months from the settlement conference date until trial. Should the matter fail to settle prior to trial, a trial management conference will be held to determine the logistics of the trial, such as the number of witnesses who will be called, the time which will be required for examinations and cross-examinations, and generally speaking, the duration of the trial.
The trial is the final step in the court process. It is at the trial that the judge makes a final decision on all of the outstanding issues.
A trial is the court proceeding the general public is likely to be more familiar with. Unlike all other previous proceedings, the trial is the only court proceeding where the parties will be called to give oral evidence before the court. The parties will also have an opportunity to be cross-examined by opposing counsel.
The duration of the trial depends on the number of outstanding issues which must be resolved, the quantity of the evidence which must be presented, and the general complexity of the issues.
Very few cases are actually tried. Statistics show that only 5% of cases are determined at trial. Like motions, the successful party may be entitled to an order for the payment of, part or all, of his or her legal fees.