SECTION 17

Trial Preparation

Presented by

Diane M. Carlton, Esq.

Litvak Litvak Mehrtens & Epstein, PC
Denver, CO
 FAMILY LAW BASIC SKILLS
COLORADO BAR ASSOCIATION CLE
FEBRUARY 17 and 18, 2011

TRIAL PREPARATION

By Diane Michele Carlton

Litvak, Litvak, Mehrtens and Epstein, P.C.
dcarlton@familyatty.com

I. THE START

Preparation for trial begins with the filing of the domestic case. After the case is filed,
case preparation consists of obtaining information to identify and value assets and debts,
to determine the income for each party, and to support or defend the parties’ positions for
allocation of parental responsibility.

1. Utilize disclosure and discovery procedures to obtain necessary

information to establish or support the relief requested by your client.

2. Retain expert witnesses as may be needed to value assets or to conduct

parenting and/ or vocational evaluations.

3. Interview potential witnesses-both favorable and unfavorable.

4. Anticipate and develop evidence to counter the positions and strengths of

the opposing parties’ case.

II. SETTLEMENT OR TRIAL

When all the necessary information has been obtained and the valuations are completed,
the case is ready for settlement. Settlement should always be attempted. If settlement
negotiations are unsuccessful, then preparation for trial begins. Even when preparing for
trial, settlement should always continue to be considered. It is a common occurrence for
cases to settle close to the trial date or in the middle of trial preparation or on the
proverbial courthouse steps.

III. TIMELINE AND STEPS TO PREPARE FOR TRIAL

1. Read the current trial management order entered by the judge in the case,
if such an order has been entered. Most of the Denver metropolitan courts enter orders
specific to their division. Make sure the requirements contained in the order have been
satisfied. Judges will dismiss or continue cases if the trial management requirements
have not been completed.

Carlton Trial Prep Outline

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 2. Identify the issues relevant for trial.

a. Determine the theory of the case. (i.e. a homemaker who needs to

be retrained for the work place) Make sure all the positions in the
case are consistent.

b. Review the statutory elements and case law which apply to the to
the disputed issue(s). Match the evidence to the elements needed to
support the requested relief.

c. If evidence does not counter, support or advance the requested

relief in the case, do not use it in trial.

3. File witness disclosure statements 60 days before trial. C.R.C.P. 16.2 (e)
(3)

4. Submit expert witness reports to the opposing party 60 days before trial,
C.R.C.P 16.2 (g) (5), except as noted below:

a. Child and Family Investigator reports do not have a statutory

deadline for completion.

b. Allocation of Parental Responsibility reports are due 20 days

before hearing. C.R.S. 14-10-127 (3)

c. Rebuttal reports are due 20 days after receipt of an expert report

d. Note: Reports from joint experts are admitted into evidence

without further foundation, UNLESS an objection is noted in the Trial
Management Certificate. C.R.C.P. 16 .2 (g) (1) (C)

5. Update asset values and debt balances, Sworn Financial Statements, and
disclosure and discovery responses. Provide updated disclosure and discovery responses
to the opposing side. C.R.C.P. 16.2 (e) (3)

6. Submit a Joint Trial Management Certificate 10 days before hearing.

C.R.C.P. 16.2 (h)

7. Issue subpoenas for or obtain waivers of service from witnesses. C.R.C.P.

45

a. Subpoenas must be served at least 48 hours before appearance of

the witness.

b. Include a check for travel costs with the subpoena. C.R.S. 13-33-
102

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 c. Provide opposing party with copies of subpoenas or waivers of
service. C.R.C.P. 45 (c)

d. Determine whether a certificate of self-authenticated record can be

used in place of a custodian of records. C.R.E. 902 (4)

e. A witness may be able to testify by telephone instead of in person.

A motion for absentee testimony must be filed. C.R.C.P. 43(i).

8. Select exhibits.

a. Prepare exhibit books-one each for the court, opposing counsel,

yourself and the witness chair. Each exhibit should be labeled.

b. Exhibits are labeled with numbers for Petitioner and letters for
Respondent. Documents exceeding one page should be numbered
within the letter of number. (i.e. A-1, A-2, etc)

c. Exchange exhibits 10 days before hearing. C.R.C.P. 16.2 (h)

9. Prepare a written list of stipulations or a Partial Separation Agreement, if

appropriate.

10. Research case law and statutes as appropriate. Consider preparing a trial
brief.

11. Identify evidentiary issues and review Colorado Rules of Evidence

relevant to the issues.

a. The filing of a motion in limine will allow the court to rule on an

evidentiary matter in advance of trial. Such motions can be used to
limit or exclude testimony and/or evidence.

b. Motions in limine are authorized to be filed without obtaining the

consent of court. C.R.C.P. 16.2 ( c) (4)

12. Meet with the client, and or witnesses to prepare them for trial.

a. Advise the client as to appropriate dress, conduct in the courtroom,

and course of trial.

b. Go over the testimony to be elicited from the client on direct

examination, and prepare the client for anticipated issues to be raised
in cross examination.

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 13. Have a back up plan. Evidence will be presented in trial differently than
anticipated before trial. Court rulings may change the trial plan. Anticipate these
changes as much as possible and have an alternative plan and evidence ready for
presentation.

14. Petitioner should prepare a proposed form of Decree of Dissolution of

Marriage.

15. Prepare proposed findings and orders if required by the Court, or as a trial
strategy, if not required.

IV. FORMS

Forms for domestic cases such as Separation Agreements, Parenting Plans, Child Support
Worksheets, Sworn Financial Statements, Child Support Worksheets, Subpoenas,
Decrees and Support Orders can be found on the state court website
www.courts.state.co.us,selfhelp/forms/index.cfm or in court self help centers.

V. TRIAL ISSUES UNIQUE TO DOMESTIC RELATIONS

1. Court reporters. Court reporters are usually not present in the courtroom.
Recorders are used to record the testimony and proceedings. Some special
considerations for counsel are to make sure the recorder is actually running, and
to stand next to a microphone when speaking. Be sure to keep a record of the
exhibits, as having an accurate record of the admission and exclusion of exhibits
will be valuable for many purposes during and after trial.

2. Evidence.

a. The divorce court is a court of equity, and accordingly the rules of

evidence are often disregarded. Prepare your evidence and objections
using both the Colorado Rules of Evidence and equitable
considerations.

b. The use of a marital balance sheet is a must in a case with more

than one asset or debt. If the court chooses your balance sheet to work
with during the trial, your client is ahead of the game.

3. Time difficulties. The Courts often limit the time for hearing, particularly at
temporary orders or emergency hearings.

a. Some courts proceed by using offers of proof. Know this fact in

advance and plan accordingly.

b. Since time is limited, make efficient use of time by reaching as

many stipulations as possible, check with opposing counsel to

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 determine if written offers of proof may be acceptable and consider
using summary exhibits.

c. Sometimes the available time for hearing will expand. For this
reason, it is best to prepare your case for a hearing within the time
limits imposed by the courts and also for a longer time.

VI. Attached forms to assist in trial preparation.

1. Divorce Issue checklist

2. Exhibit checklist
3. Marital Balance Sheet
4. Sample Exhibit List for Trial
5. Non-Contested Permanent Orders checklist

Carlton Trial Prep Outline

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 CHECK LIST OF DIVORCE ISSUES

1. DECISION MAKING FOR CHILDREN

a. Shared, sole or allocation of components
b. Medical, educational and religious matters, extra curricular activities?

2. PRIMARY RESIDENTIAL PARENT

3. PARENTING TIME (visitation)

a. General - reasonable & liberal or defined
b. Supervised or unsupervised
c. Number of overnights (greater than 92 use child support worksheet B)
d. If defined- include time, location, & days
e. Holidays - list and divide
f. Vacations - summer - parents’ and child(ren)’s school
g. Birthdays -parents’ and child(ren)
h. Mother’s day and Father’s day
i. Grandparent(s) visitation
j. Seat belts, car seats, no alcohol or drug consumption
k. Transportation and location for parenting changes
l. Change by mutual agreement

4. CHILD SUPPORT
a. Documents needed from the parties to support amount
1. Sworn Financial Statements
2. child support worksheet(s)
3. income tax return(s), paystubs
4. other adjustments to worksheet(s)-daycare, health insurance
5. payment through court registry – who pays registry fee(s)
6. wage assignment or payment directly to receiver
7. other child deductions
8. modification from guidelines - must have basis
9. number of overnight visits (worksheet A or B)

b. Determine income of parties

1. wages, including overtime if required by employment
2. regular gift income
3. personal expenses reimbursed by employer
4. retirement income
5. business income-K-1’s, retained earnings in chapter S corp, draws
6. many other possible sources- see C.R.S. 14-10-115 (7)

c. Adjustments to child support worksheets

1. child care costs
2. health and dental care premiums

Carlton Trial Prep Outline

Divorce Issue checklist
 3. transportation expenses
4. extraordinary educational expenses

d. Future modifications
1. Date to exchange documents
2. Documents to be exchanged
3. Do parties calculat on their own?

5. CHILD SUPPORT OR SPOUSAL MAINTENANCE ARREARAGE

a. Amount
b. Payment through court registry or direct to party
c. Reduce to judgment or payment schedule
d. Interest-12% for child support, 8 % for maintenance

6. PROPERTY
a. Separate property to be set aside (increase during marriage is marital)
b. Personal Property (electronic equipment, clothes, books, furniture, tools,
sports equipment, etc.)
c. Real Property (commercial properties, residences, vacant land, condos,
time-share interests, etc.)_
d. Vehicles ( cars, boats, trailers, ski jets, campers, planes, motorcycles, etc.)
e. Financial interests (stocks, stock options, bonds, U.S. savings bonds,
debentures, bank accounts, mutual funds, promissory notes, monies owed
from others)
f. Retirement plans including IRAs, PERA, 401(k)s, 457’s, 403(b)s, military
retirement, defined benefit plans, government pensions
g. Deferred or prepaid monies-taxes, security deposits, accrued sick and
annual leave, early out bonuses, bonuses, contingent interests, health
savings accounts
h. Business interests-corporate, partnership and sole proprietorships
i. Collections- art, antiques, coins, baseball cards, dolls, etc.
j. Life insurance with cash value
h. Trusts
i. Other-country club memberships, royalties, oil and gas and mineral
interests, water rights, frequent flier miles, pending lawsuits
j. Children’s assets (who will manage)

7. DEBTS
a. Car loan(s)/ lease - if leased, refund of up front payments
b. Home Mortgage(s) - stays with property
c. Business loan(s)
d. School loan(s)
e. Bank loans, lines of credit
f. Loans from organizations or individuals
g. Credit cards
h. Any other debt obligations

Carlton Trial Prep Outline

Divorce Issue checklist
8. FEES AND COSTS
a. Attorney’s fees
b. Allocation of Child and Family Investigator and/or parental evaluator fees
c. Payment of expert witnesses
d. Paternity blood testing costs

9. MAINTENANCE
a. It no award, must be an affirmative waiver for present and future
b. Amount –set or declining (if declining check for recapture tax problems)
c. Duration/conditions of termination
d. Security for maintenance - life insurance, or provision in will
e. Contractual/non modifiable or traditional modifiable
f. If modifiable- under C.RS. 14-10-114 or 122

10. TAXES
a. Amount of delinquent state or federal taxes
b. Allocation of past due taxes
c. How to divide prior or future state and/or federal tax refund
d. Child dependency exemption(s)
e. Capital gains taxes
f. Payment of other taxes due and owing (example: property taxes)
g. Allocation of tax deductions for current year (mortgage and property
taxes. interest, etc.)
h. If close to end of calendar year, file agreement that year or in next year

11. CATASTROPHIC EVENTS

a. If either parent dies then the other parent gets child(ren) unless parental
rights are terminated
b. Who gets child(ren) if both parents die simultaneously?
c. Do the parents have wills? If so, who are the beneficiaries, guardians and
conservators?

12. MEDICAL INSURANCE/UNINSURED EXPENSES

a. Medical
b. Dental
c. Orthodontic
d. Vision
e. Counseling/Therapy sessions
f. Who pays premiums, co-payments, deductibles, uncovered amounts and
uninsured amounts?
g. COBRA-cooperation from primary insured
h. Procedures for reimbursement-timeline to submit receipts and for payment
I. Items to be reimbursed-extraordinary under statute?

13. LIFE INSURANCE

Carlton Trial Prep Outline

Divorce Issue checklist
 a. Award of policy
b. Serviceman’ s Group Life Insurance for military

14. EXTRAORDINARY EDUCATIONAL EXPENSES

a. Private school costs
b. Special needs/tutors
c. Technical School

15. POST-SECONDARY EDUCATION

a. Cannot be court ordered-by agreement of parties only
b. Conditions-age or attainment of degree, satisfactory GPA
c. Tuition, fees, room and board, other costs, transportation

16. RELOCATION OF CHILDREN OUT OF STATE

a. Conditions and or/terms of agreement for future move(s)
b. Prohibition unless consent given by court or other party

17. RESTORATION OF FORMER NAME

a. Name to be restored
b. Statement-not for purpose of defrauding or misleading 3rd parties

18. FUTURE DISPUTE RESOLUTION

a. Mediation, arbitration, parent coordinator/decision maker
b. Payment of costs
c. Issues-some or all issues or exclusion of emergency and contempt

Carlton Trial Prep Outline

Divorce Issue checklist
 EXHIBIT CHECKLIST

ASSETS AND DEBTS

account statements to show current values and debt balances
account statements to show value of separate assets at acquisition
valuations, appraisals, expert witness reports on values
list of personal property; with values and/or proposed division

INCOME
paystubs, employment contracts
tax returns; W-2 and 1099 statements
bank records/check registers showing deposits and amount of expenditures
financial statements and loan applications
vocational evaluations
Sworn Financial Statements
medical or psychological records for claim of disability
resumes or job applications to establish work history
net spendable income schedules

AFFIDAVIT OF ATTORNEY’S FEES (if requesting an order for an award of attorney’s

fees)

RELEVANT PLEADINGS AND ORDERS (include because the court file is often
incomplete or voluminous)

CERTIFICATES OF SELF AUTHENTICATED RECORDS -C.R.E. 902 (4)

SUMMARY EXHIBITS (see requirements of C.R.E. 1006)

Expenditures for many purposes, including dissipation of assets
Income history or income stream
Children’s medical and or extra curricular expenses
Monies and or expenses paid by one party as support
Arrears for child support and/ or maintenance payments
Records of job search, if unemployed
Marital balance sheet with proposed division of assets

PARENTING ISSUES
Child and Family Investigator/Allocation of Parental Responsibilities Report
School records-academic or attendance
Medical records
Child support worksheets
Calendar showing parenting time history
Proposal for parenting time

Carlton Trial Prep Outline

Exhibit checklist
IMPEACHMENT-SOURCES OF CONTRADICTORY STATEMENTS
Inconsistent statements made by the other party or witness
Police reports
Prior Sworn Financial Statements from this case or previous divorce cases
Responses to Interrogatories and Request for Production of Documents
Verified motions or affidavits from the opposing party or witnesses
Deposition transcripts
Transcripts of testimony from prior hearings

Carlton Trial Prep Outline

Exhibit checklist
 IRM SMITH Page 1
Marital Balance Sheet

IRM: Smith ASSETS Description SOURCE Amount Husband's Wife's

REAL ESTATE
Address appraisal 111,111
reductions to equity 1st Mortgage and HELOC (100,001)
Net equity 11,110
Address estimate 100,000
reductions to equity Mortgage (99,900)
Net equity 100 100
VEHICLES
1995 Cadillac (W) 10,000
reductions to equity loan (5,000)
Net equity 5,000
2004 Mercedes (H) H's SFS 65,000
reductions to equity loan (60,000)
Net equity 5,000

BANK ACCOUNTS
US Bank XXXX(Jt) 12/31/10 1,000 500 500
US Bank XXXX(Jt) stmt 12/31/10 50 25 25
FURNITURE & HOUSEHOLD
GOODS
Wife's residence Divide in
kind
Husband's residence Divide in
kind
INSURANCE Mutual of Omaha XXX 25,000 25,000

RETIREMENT ACCOUNTS
IRA - US Bank xxx(w) stmt 12/31/10 2,500 2,500
IRA Charles Schwab (h) stmt 12/31/10 2,500 2,500
INVESTMENTS
Schwab xxx(jt) stmt 12/31/10 25,000 25,000

OTHER ASSETS

77,360 33,125 44,135

DEBTS
Visa xxxx (jt) stmt 12/24/10 (5,000) (5,000)
AmEx xxxx(jt) stmt 12/15/10 (5,000) (5,000)

TOTAL ASSETS LESS DEBTS $67,360 27,125.00 39,135.00

Carlton Trial Prep Outline

Marital Balance Sheet
DISTRICT COURT, DOUGLAS COUNTY, COLORADO

Court Address: Douglas Combined Courts

4000 Justice Way, Suite 2009
Castle Rock, CO 80109
(303)663-7200

Petitioner: JOE SMITH

and

Respondent: JANE SMITH ▲COURT USE ONLY ▲

Attorney for Petitioner: Case Number: 09DR0000

Litvak, Litvak, Mehrtens, & Epstein, PC
Diane Carlton, #8013 Div.: 3
1900 Grant Street, 5th Floor
Denver, CO 80203
Phone: (303) 837-0757 Fax: (303) 839-9826
dcarlton@familyatty.com

PETITIONER’S EXHIBIT LIST

# DESCRIPTION OFFERED OBJECTN STIP RECVD REFUSED

A Paystubs for Petitioner for
2010

B W-2 forms for 2010 for

Petitioner

C W-2 forms for 2010 for

Respondent

D Interrogatories and Requests

for Production of Documents
propounded to Respondent
E Petitioner’s Responses to
Interrogatories and Requests
for Production of Documents
and updated disclosures
F Respondent’s Sworn
Financial Statement dated
September 28, 2010
 # DESCRIPTION OFFERED OBJECTN STIP RECVD REFUSED
G Petitioner’s Sworn Financial
Statement dated September
15, 2010
H Affidavit for Attorneys Fees
for Petitioner
I Kelly Blue Book valuation
for vehicles
J Marital Balance Sheet
K Parties Joint 2009 tax return
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z

Carlton Trial Prep Outline 2

Exhibit list - trial
 NON-CONTESTED PERMANENT ORDERS HEARING

Documents to be presented to Court

1. Separation Agreement, marked as exhibit 1

2. Parenting Plan (if separate from Separation Agreement)
3. Sworn Financial Statements for both parties
4. Decree of Dissolution of Marriage
5. Child support worksheet, if appropriate
6. Support order- for payment of child support or maintenance
7. Self-addressed stamped envelope for return of conformed decree and support
order (with 4 copies of each document) unless documents will be returned
electronically

Examination of Petitioner

Please state your name, and spell it for the recorder.

Are you the Petitioner in this dissolution of marriage action? Are you married to the
Respondent,? Is the Respondent here today?
(If so) Would you identify him by where he/she is sitting?
(If not) Was he aware of the hearing today? How do you know that?

What was the date of your marriage to the Respondent? And the place? When did you
separate?

Is your marriage to the Respondent irretrievably broken? Is there any hope of

reconciliation?

Were you a resident and domiciliary of the state of Colorado for at least 90 days prior to
filing this action?

Were there any children born or adopted during the marriage? Please tell the court the
children’s names and birthdates.
(woman) Are you expecting another child at this time?
(man) To the best of your knowledge, is your wife expecting a child at this time?

Are you requesting restoration of your former name? If yes what is the name, and spell
it for the recorder. Will the change of name defraud any creditor or third person?

Are you asking the court to grant a dissolution of marriage at the conclusion of the
hearing today?

Carlton Trial prep

Non-Con Checklist
Did you hear the agreement read into the record? Or have you read the document
titled Separation Agreement, which is marked as exhibit 1? Is this the separation
agreement that you signed-is that your signature on page ___? Is that your spouse’s
signature (if absent) on page_____.

Is this your agreement? Do you understand it? Do you have any questions about it?

Did you enter in the agreement freely and voluntarily? Has anyone coerced you or
pressured you into to signing it?

Have you been represented by counsel throughout this case? Are you satisfied that you
have been fully advised about your rights in this matter? Are you aware that you have
a right to proceed to a hearing and ask the court to enter orders on the matters
contained in this Separation Agreement? Have you decided to waive your right to trial
at this time and enter into the agreements contained in exhibit 1?

Are the parental responsibility arrangements set forth in the Separation Agreement (or
Parenting Plan) in the best interest of your minor children?

(If this party is waiving maintenance) The Separation Agreement provides that you
will waive maintenance, which is spousal support. Do you understand that if you
waive maintenance, you have waived it now and forever? In other words, you cannot
ever come back to court for any reason after today and request maintenance. Knowing
that, do you still agree to waive maintenance?

Taken as a whole, are the terms of the Separation Agreement fair and not
unconscionable to you, the Respondent and your minor children

Are you requesting that the court approve the terms of the Separation Agreement?

Your honor, I have no further questions.

Carlton Trial prep

Non-Con Checklist