If you and the other party are not able to settle your issues and reach a full agreement, the judge will have to set an “Evidentiary Hearing” or a “Trial.” If the judge sets an evidentiary hearing or a trial in your case, visit this page to learn how to prepare, documents to file, and what to expect.
What is the Difference Between an Evidentiary Hearing and a Trial?
An “evidentiary hearing” is when the judge makes a final decision about one part of the case. For instance, the judge may set an evidentiary hearing to decide final child custody issues. A “trial” on the other hand, is a final hearing where the judge will decide all remaining issues and grant a final divorce.
At both a trial and an evidentiary hearing, both sides are expected to present witnesses and evidence to support each person’s view of the case. Find out more about each stage of the trial phase:
1. Learn the basics. There are free resources to help you learn as much as you can about trials.
2. Preparing for Trial. There are many things you will need to do to get ready for trial, such as gathering your evidence, requesting evidence from other people if needed (called "discovery"), choosing witnesses to testify, and letting the other party and the judge know what evidence and witnesses you plan to present at trial.
3. The Trial. Learn what to expect the day of your trial.
4. After the Trial. The judge may ask you to prepare the official order from the trial.
Trials are very different than the other kinds of court hearings you may have handled by yourself. There are a lot of rules and requirements the judge will expect you to know and follow.
Legal Aid Center of Southern Nevada has a free class that teaches the basics of litigation and how to get ready for a trial. They offer a free online class once a month where an attorney explains the basics. You can sign up online at the Litigation and Trial Preparation Class signup page.
If you cannot attend the class, you can watch a pre-recorded version of the class below.
Discovery is the process that allows each party to get information to build their case. The purpose of discovery is to make sure that you and the other party know what documents and witnesses the other side will be presenting at trial.
There are many different discovery tools. Because each case is different, there is no standard way to do discovery. You may need to consult with an attorney for assistance in understanding and conducting your own discovery. A short description of different discovery tools and forms to help are below.
If you are served with discovery requests, do not ignore them! There are strict deadlines for you to respond. If you do not respond, you risk having facts deemed as admitted or the other party can file a Motion to Compel and bring you before the judge for non-compliance. Do your best to respond to the discovery requests - forms to help you file answers/responses are below. If you do not know how to respond to discovery requests, it is best to seek legal advice.
Subpoenas: This is a request for someone who is not a party in the case to provide documents or appear in person and testify. It must be issued by the Clerk of Court to be valid and must be served to the person named in the subpoena and also the other party.
Interrogatories: These are written questions to the other party that must be answered under oath.
Requests for Production of Documents: This is a request to the other party to provide documents or other tangible things.
Requests for Admissions: These are requests asking the other party to admit or deny specific facts.
Depositions: A potential witness is questioned under oath in the presence of both parties, their attorneys, and a court reporter. The judge is not present, but a transcript of the deposition may be presented at trial.
Disclosing Your Witnesses and Exhibits
You will need to decide what documents you want to present at trial and what witnesses you want to testify, then you have to disclose that information to the other party.
There are deadlines to disclose your list of witnesses and exhibits. The judge probably set these deadlines in the Order Setting Trial – check the order to find any deadlines for your case. If you do not disclose your list of witnesses and documents by the deadline, you may not be allowed to use them at trial.
Special instructions for exhibits: Send a copy of the exhibits listed in the form to the other party, but do not attach them to the form when you file. You will need to submit your exhibits to the judge just prior to your trial date. Most judges prefer you submit your exhibits through a separate electronic portal, but sometimes the judge will want you to bring binders with hard copies of the exhibits. Check with your judge's staff to find out the specific instructions for providing them to the judge.
Your Pre-Trial Memorandum and Financial Disclosure Form
The judge will probably order you to file a Pre-Trial Memorandum (the judge may also call it a "Pre-Hearing Brief"). This is a summary of the arguments you plan to present at trial. You must file the Pretrial Memorandum by the judge’s deadline and serve it on the other party. Usually, you must also file an updated Financial Disclosure Form if property or financial issues will be decided at the hearing.
On the day of your trial, arrive early to the courthouse so you have enough time to park, get through security, and get to the courtroom before your case is called. Bring copies of all the documents that you plan to use at trial.
Opening Statments. The judge may allow each side to give an “opening statement.” This is a brief summary of the case you intend to present. Do not argue with the other side or offer any witnesses or documents at this point. This is just a chance for you to give a short statement of your case.
Witnesses. The “moving party” – or the person who is trying to convince the judge what orders should be issued – will call witnesses. If there is no “moving party” the Plaintiff will call witnesses first. The person who calls the witness to the stand will be able to ask questions first. When that person is done, the other party can ask questions through “cross-examination.” Cross-examination is used to poke holes in the witness’s testimony or discredit the witness. After cross-examination, the party that called the witness gets to ask any final questions, and then the other party is given one last chance to cross-examine. Once the moving party has questioned all of their witnesses, the other party calls their witnesses and the process above will repeat.
WARNING!Do not argue with a witness or the other party during the trial. You may object to a question or the testimony if you believe it should not be considered by the judge. If you feel that someone is lying or not telling the whole truth, wait until it’s your turn to ask the witness your own questions.
Closing Statements. After all of the witnesses have testifed, the judge may ask each party to give a “closing statement.” This is a final summary of the evidence that was presented at trial and why the judge should rule in favor of that person.
Decision. The judge will consider all of the evidence presented and make a decision. The judge may tell you the decision immediately in court, or the judge may want to think about the evidence for a while and write up a written decision later.
After the judge makes a decision, the decision is not enforceable until is it written and signed into an official order. The judge might write the order, or the judge might pick one party to “prepare the order” from the hearing. It is that person’s responsibility to prepare the written order from the hearing, submit it to the judge for review, and send a copy of the signed, filed order to the other party.
If the judge granted a divorce at the trial, see Getting the Final Divorce Decree for information on how to prepare a Decree of Divorce. If the judge did not grant a divorce as part of the order, you can use the following forms to get the judge’s order entered in writing.