What is a Pre-Trial?

If you are currently going through a divorce, you may be a little confused about some of the terminology that is thrown around by your lawyers or the judge. Upon the commencement of a case, there will be what is called a “pre-trial”. A pre-trial is a proceeding that usually takes place in the Judge’s chambers. A pre-trial should not be scheduled until there have been some attempts at settling the matter and there remains issues in dispute. In addition, there should be a substantial amount of discovery exchanged to the point where the parties can fully disclose the financial situation to the Judge for his or her recommendation.

At a pre-trial, the judge will look at the pending issues in the cases and any disclosure statements in order to make an informed recommendation for settlement. It is important to note, however, that this judge may or may not be your final trial judge. As a result, if this is your trial judge, any recommendations are likely to be ordered at any subsequent trial or hearing unless there was evidence or arguments that were not presented at the pre-trial. If the judge is not your trial judge, then you may have an opportunity to have a second bite of the apple with your trial judge at a subsequent trial or hearing. However, you will be incurring more fees preparing for trial in the event the case does not settle by then.

As a result, a pre-trial is a very important step in trying to settle your divorce or pending litigation. Some judge require a pre-trial memorandum. If not, your attorney should prepare one for you and should be fully briefed on the issues so he or she can present your argument. Any failure to not understand an issue or missing discovery could result in wrong recommendations (which could mean settling for less or forced to incur more attorneys fees at a trial), or could delay the case as another pre-trial or status needs to be set on pending discovery or other issues.

If your case is set for pre-trial, or you think your case should be set for pre-trial, talk to your attorney about obtaining one in your case and the benefits or consequences of same.

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