What is a Court Setting
A court setting is a conference scheduled in court to discuss your case, usually with the prosecutor and judge present. The purpose of the court setting is generally to give you an idea of what to expect in terms of your case, and to provide you with adequate time and information to prepare for trial if necessary. Put another way, the court setting is intended to give you and your attorney an opportunity to plan a new course of action, if necessary. In order to know what court setting you should be prepared to attend , start by consulting with your local rules regarding court settings.
Court settings can come at numerous intervals during the course of a case. For example, there could be a court setting: as a part of plea negotiations, before a pretrial hearing, before or after a trial, etc. Although the specific nature of your case will determine what type of court setting you will encounter at each stage, the basic purpose remains the same, which is to give you an opportunity to discuss where things currently stand, and provide you with adequate notice if anything has changed.
Types of Court Settings
There are a number of different court settings. The most common settings are criminal, civil, family and traffic court.
In the criminal court, the county prosecutes the case on behalf of the people of Virginia. The defendant is allowed to have an attorney represent him or her. The judge tries the case and the jury— if the defendant is entitled to a jury — may be present to decide guilt or innocence. These cases include felonies and misdemeanors. A felony carries the possibility of incarceration in the state penitentiary for more than 1 year. Misdemeanors carry the possibility of jail time not to exceed 1 year.
Civil court is the place where most personal injury cases are tried. This setting is where one party may sue another due to damages and/or injuries that have occurred. An example would be the injured person’s car being hit by the negligent driver. Personal injury and medical malpractice cases are often heard here. The plaintiff, the person bringing the lawsuit, includes all of the people responsible for the negligence or the action that caused harm to them. The defendant’s attorney will try to get the case dismissed or minimized.
Family court is set up to have the cases between husband and wife, or parent and child, heard. Most family law issues revolve around separation and divorce matters. Issues of child custody, spousal support, child support and property settlement are heard here. Separation can be obtained without filing a divorce action, but if grounds for divorce are established, the case proceeds to a divorce hearing. If there are children involved, issues of custody and support must be determined as well as property distribution.
Traffic court is a place where you may receive the "footprint of the state." The Commonwealth is always represented by an attorney, either in person or in writing, to prosecute the traffic violation. Most traffic cases that are contested are heard by the judge. The hearings are short and you must check the court schedule prior to the date and time you appear in court.
Many times, you may resolve your traffic case without going before the judge if you have a lawyer representing you in court. Your lawyer should be able to negotiate with the prosecutor to secure an outcome the judge is likely to approve.
Participants Involved in a Court Setting
The judge, in conjunction with the lawyers for each of the parties, is responsible for setting the trial schedule. After all of the pleadings have been filed and the attorneys are ready to proceed with the case, the case is listed on the Court’s docket. The Judge may conduct a pre-trial conference just to discuss the length of time necessary to complete the trial and whether the two lawyers can agree on a trial schedule to accommodate the schedules of the witnesses, or the Judge may set a trial schedule at random. Both Judges and lawyers candidly discuss possible trial dates and attempt to make decision that will work best for the clients and all the witnesses. Sometimes, the interests of two or more parties with conflicting interests would be served by trying both trials at the same time, using the same witnesses and documents. The Court may advise of the number of witnesses that you anticipate calling, and discuss with you your estimated length of time for presentation of your case. This also gives you a chance to alert the other party of any special circumstances affecting your ability to be present at court on a certain date. After consulting with the lawyers, the Judge sets a trial schedule, and provides it to the lawyers so they are aware of the dates and times set to proceed to trial.
It is likely that more than one case will be scheduled to be heard or tried by the Judge on the same day. A Courtroom Clerk is assigned to assist the Judge during the trial, and to assist the lawyers in the Court. The Clerk maintains all exhibits offered into evidence, and will also keep a record of any objections which are made during a trial. The Clerk takes all notes of the Judge’s rulings, and makes sure that a transcript is provided to you and/or your attorney upon request.
The Court Reporter is responsible for providing the verbatim transcript of the Court proceedings as they are being presented in Court. Some Court Reporters complete their transcripts within a week after the matter is heard, and some have used electronic transcription services which take longer. If you will need a transcript of the proceedings, tell your lawyer so that he/she will be aware of this need and can obtain it for you. When a case is taken under advisement by a Judge, or when a case has been noted for decision by the Appellate Court, which occurs during the pendency of the Appellate Court proceedings, the Judge may designate the matter as "not subject to the Freedom of Information Act (FOIA) review." These cases cannot be inspected nor can copies of the transcript be made during the pendency of the Appellate Court’s review. In those events, however, the rights of the Court and Court Reporter to assert the FOIA exemption ends the moment the docket is closed in the Appellate Court. Therefore, you always have the right to obtain trial transcripts, even if they are subsequently sealed.
How a Court Setting Works
The general process of a court setting from beginning to end, meaning the filing of the case to the final order or judgment, is dependent on several factors. A mediation may take place prior to the filing of a case or prior to the final hearing. Some parties may enter into an agreed form of final settlement agreement that is just submitted to the Court for approval. Some may actually decide to just submit a consent order containing the terms existing in the agreement that will be submitted to the Court for approval. Additional factors like whether children are involved, the type of case and/or whether it is contested or uncontested can also determine the general court setting process. Most courts have a mandatory waiting period prior to filing through to divorce. For example, in Fulton County, Georgia if a couple has minor children and is filing for divorce, they have to attend a ‘Parenting Seminar’ prior to filing, which is typically held once a month so there is a 30 day waiting period from the time the concept is conceived to the actual filing of the divorce action itself. The party filing the case has to wait until four months after the seminar to file for divorce. This process may take anywhere from approximately three to six months prior to obtaining a final hearing and order for uncontested divorces. If it is a contested matter, then if minor children are involved, the party filing the divorce action may have to wait until the party has had a visitation with the children with counsel present or has attended a seminar about divorce and children. That varies from district to district. Other examples of court settings depend on expungement matters, probate proceedings, civil litigation matters and other various types of legal settings. Each venue or jurisdiction has their own regulations and procedures for how a party will progress from the time of filing up until the final disposition. Since there are many criteria, it is always good practice to consult counsel to find out the specific requirements for a court setting through your state local bar association in your area.
Getting Ready for a Court Setting
The protocol for appearing in court varies by the level of court at which the case is being set. In any setting, there are a few documents that almost always apply, applicable to each party, and focusing on 5 essential orders: 1) Order for Protection (OFP); 2) Domestic Abuse No Contact Order or Burglary No Contact Order (BNCO); 3) Harassment No Contact Order (HNCO); 4) Domestic Abuse Serial No Contact Order (DASNCO); 5) Psychopathic Personality Disorder (PPD) Trial. When preparing to make a court appearance, the party simply needs to bring three documents: 1) Remand papers (remand to Probation); 2) Waivor-of-Counsel; and 3) Considerations of a Written Order. REMAND PAPERS: Remand papers are usually part of a Pre-Sentence Investigation (PSI). A PSI is a document that a probation officer prepares, sent to the court recommending what the sentence should be. The remand papers that come with a PSI are simply papers that the probation officer prepares REMANDING the offender to the Department of Corrections. WAIVER OF COUNSEL: The waiver-of-counsel form is a document used by a client asking the court to conclude that the right to counsel has been voluntarily and intelligently waived. CONSIDERATIONS OF A WRITTEN ORDER: Considerations of a written order are not actually required , but they are a recommended thing to be prepared -something good to have on hand. What that basically is is a document saying, I have read the order of which I am to comply with and we have gone through all the issues concerning it. What a person would do is simply walk in, having signed this paper, and hand the judge the document, which the judge will then read. If an individual does not have these three pieces of paper, the Judge will ask for them before proceeding with the case. For example, if the judge did not have the remand papers, he or she would obviously stop and ask for them before proceeding with the case. If a party is seeking an Order for Protection, a Domestic Abuse No Contact Order or Burglary No Contact Order (BNCO), a Harassment No Contact Order (HNCO), a Domestic Abuse Serial No Contact Order (DASNCO), or a Psychopathic Personality Disorder (PPD) Trial case, all cases are filed in the jurisdiction where the defendant resides, as opposed to the city where the parties are living at the time that the case is filed.
Court Setting Tips and Tricks
Arriving at the Courthouse Early – In the complex and fractious family process, the first thing to keep in mind about going to court is that the day belongs neither to you nor to your spouse. Family court settings often involve multiple matters being scheduled with relatively short time allotments. You must recognize that your case may not be heard for several hours or even until the end of the day, pending the disposition of other cases with which your case has been set. A hearing is no guarantee of a resolution.
Obtaining an Extension – The advantage of getting a lengthy adjournment or extension is that it may eventually lead to a case being settled and allowing control of things by negotiation as opposed to the uncertainty of a decision by a judge. A downside is that the issue of the extension often becomes more time consuming and contentious than the underlying issue in the case. Almost always, the request for an extension is filed by one party with the Court and the other, if notified, must place their objection with the Clerk. There is no charge for filing the motion, although the filing fee is paid by the requesting party. If the motion is not opposed, an extension may be obtained by the moving party based upon the Court’s availability.
If the extension is opposed, counsel or the parties must attend Court on the return date of the motion to present their side of the issue, although the Court on occasion will decide the matter with or without testimony or oral argument. If the moving party can demonstrate that the matter is not ready for hearing, the Court may allow an extension (or delay of the hearing) over the objection of the other party. "Not ready for hearing" may include a situation where certain discovery is outstanding, where there are critical witnesses not available or where the other party is purposely avoiding court-ordered discovery.
However, where the other party has made any meaningful effort to schedule depositions or requests for documents with opposing counsel or where discovery efforts are ongoing, the Court almost always favors the party complying with discovery or the redeposition of witnesses prior to going to Court. In our experience, judges trying family matters consistently conclude that it is in everyone’s best interest for the case to be heard on the merits with minimal delay. The oft-stated goal of the Family Division is to get matters to trial or settlement as quickly and efficiently as possible. In many cases, the Court will expect counsel to schedule mutually convenient hearing dates and issue an Order listing those dates to ensure that there is follow through on counsel’s part. We have found that some judges will fine counsel who allow cases to linger.
Dressing for Court – While the Court is ultimately concerned with substance over appearance, you should always dress to impress. A suit is the most common attire for a man. While women have more flexibility in wardrobe, they should generally stay away from excessively tight clothing and unprofessional attire. No matter what your appearance, do not chew gum in the courtroom and avoid fidgeting during the proceedings. In particular, avoid playing with your hair, fidgeting with your clothes, biting your fingernails, etc. You do not want to provide the Court with the impression that you are immature or disrespectful. When speaking with the Court, always refer to the judge (or the magistrate to whom your case is assigned) as "Your Honor."
It is almost always a good idea to have counsel mark the exhibits with an exhibit sticker (usually numbered one, two, three, etc.) before the hearing. Going over a document mid-hearing to have opposing counsel identify it verbally is time-consuming and causes delays. Moreover, unless signed by a judge, a document constitutes no more than an unsigned copy and cannot be used as an exhibit (without consent) until it’s marked as an exhibit.
Common Court Setting Myths
I am often surprised to hear the misunderstandings and misconceptions that clients have about how cases are handled in court, particularly when it comes to divorce and separation. The television, movies, and even books can shape people’s impression of how cases are handled in terms of how long it takes for cases to get through the system and how they are resolved.
Most cases do not proceed to trial. I understand that most people assume in a divorce that they will have to go to court. What I think people need to understand is that most cases never get to the point of having to go to court. There is some kind of resolution that occurs. This is a process that should be preferred because the client has more control over it, rather than having a judge decide what happens in their case.
People also need to understand that court moves very slowly. If you file a lawsuit, like a complaint in divorce or a complaint for support, it can take several months before you get to the first court date. Then, the next court date can be months away. Depending on the type of court date, you might not even have another court date for six months or more. In Pennsylvania, you get 90 days to serve your spouse after you file a complaint. You have to wait 20 days from serving them before they have to answer which starts the discovery period. Essentially, there are many months from when the complaint is filed until a final trial or resolution.
Scheduling is important. For that reason, it is important that clients understand to schedule court dates ahead of time, even if they end up being rescheduled. But, it is important to know that our office will schedule the dates that they want based on their availability. We will also try to accommodate their schedules as much as possible.
Representation in Court. People also seem to think that getting representation for court is the only thing that they need. They will call here and talk about how they want to get representation to maximize their alimony and child support amounts. While this is important, we have to make sure that we also establish child custody arrangements that will work well as well.
The reality. I think that people need to understand that television, movies, and books do paint an unrealistic picture of how things happen in the court. I think people also need to realize that while divorce and family litigation is hard, it can have many positive business decisions for the client as well. It does not always need to be a fight, nor do I think that it should be. For that reason, I also think people need to understand that they can negotiate well with an attorney guiding them without the threat of a court hearing, such as the final hearing in divorce.
The Future of Court Settings
While technology is not necessarily changing the way court settings are conducted, it is playing a significant role in them from the time of notifying people of setting dates through the use of digital documents and filing. The introduction of virtual court settings through the means of teleconferences allows some cases to be tried remotely. Participants can simply dial into a conference call number on a particular date and time to participate. The convenience of this alternate setting depends on the kind of case and circumstances involved.
Court bookings are currently down due to the effect of both COVID-19 and those who believe that trial in a pandemic will lead to jurors making decisions based on fears rather than facts. How will these altered settings be used after the pandemic? Will some family trials actually be conducted virtually?
The Ontario government implemented a "virtual judge" court setting using Zoom which was last modified on April 6th . I anticipate that this "virtual judge" setting will continue to be a permanent setting option. While "in-person" court settings may return in the future, for the last decade there has been a move away from "traditional" court settings. There are still many court settings that require attendance but there has been a marked increase in alternative ways of resolving disputes with "in-person" court settings being less common than in the past. Many court settings are now being conducted on paper, by telephone and/or video conferencing. It is likely that in the future more trials and family litigation cases may be conducted virtually using technology to store and use evidence and to communicate with attendees. Video conferencing and smart phone apps are trending, paving the way for the use of technology in the legal system.