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Trial Practice: Pre-trial Orders are beautiful things.

A little while ago, I was trying a free wheeling case which was stretching on into days. Opposing Counsel's witnesses and documents seemed as loose as as an earthworm on valium. He barely knew who he was going to call as a witness anymore than I did. For trial practice, it was nearly anarchy. It was very close to pandemonium in the court room.

In the midst of all this the Judge exclaimed, "this just tells me that I need to require a Pre-Trial Order and set a deadline well in advance of the trial!"  Ya think?  Absolutely, that's the ticket.

A Pre-trial Order is the playlist, a script of sorts, for the trial.  Both sides list all of their witnesses, all of their documents and all of their contentions sufficiently in advance of trial so that there are no surprises and so that the trial is an organized, orderly process.  This makes the trial far more focused, most likely to explore relevant issues which will shed light on the truth and produce the best result.

In a civilized world, which in civil practice we claim to be, we did away with surprise a long time ago.  The thought is that sudden revelation of facts works against truth because it allows no time for a reasoned and appropriate response. Instead, surprise is a red flag for chicanery.  

So a Pre-trial Order is the perfect solution for getting all the parties on the same page as to their issues and their evidence.  Not only does it provide for a far smoother trial, but it maximizes the chances of settlement because both sides can see each other's strenghts and weaknesses.  It brings the bright light of day to the often murky shadows of the case.

I have been advocating for Pre-Trial Orders in Family Law cases for decades. Having practiced now for coming on 26 years, I see first hand the benefits, even the necessity of a Pre-trial Order.  But all too often Family Law cases are the red-headed step children of the judges' dockets so they get little attention and even less care.

So, YES! Every Family Law case should, must have a Pre-Trial Order submitted one to two weeks before the calendar call.  It will shorten every trial.  It will make for far better, more prepared, more exacting and more truth finding trials. And it will result in fewer trials because a significant number of them will settle before they are reached.

Trial practice could be so much more efficient.  Efficiencies equal less costs. Less cost and better results?  Who could possibly be opposed to that?

Michael Manely

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