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Reading and Understanding Orders Setting Non-Jury Trial, Part I

March 29, 2022

I recently helped prepare a client to represent himself in an all day trial and can share some insights into some of the pitfalls he encountered and can offer some helpful litigation ‘hacks’ to make preparing for trial a little easier. This particular pro se litigant had filed his supplemental petition and had been actively working his family law case long before he hired Self Help Legal Services. As in many cases, money played a role in how much help he could afford. However, he was able to tailor his legal needs focusing on the highest priorities while at the same time staying within his budget.

When it comes to trial, the Court’s Order Setting Non-Jury Trial is your Bible and when you get that order setting non jury trial, the first thing you should do is read the order a couple of times - especially if you’re not accustomed to reading legal documents.

The following document is a typical order setting non jury trial in the Eighth Circuit covering Alachua County and the greater Gainesville area, Trenton, Chiefland, Starke, Bronson, Lake Butler, and Macclenny, Florida. To make this easier, we are going to read one page at a time and here’s the first page of a typical order:

The top third of the page is called the case style, which includes the circuit, county, parties’ names, case number and division code. The body of the document begins with a title and in this case the title is “Order Setting Non-Jury Trial.” The first paragraph cites to a rule and identifies the pleading(s) (document(s)) that will be heard at the trial

The first numbered paragraph titled “TRIAL DATE” states the trial date in bold and capital letters, the time the trial begins and how long the trial will last. PUT THIS DATE ON YOUR CALENDAR!

The first numbered paragraph also includes the Zoom information because this particular trial is by Zoom. You’ll want to keep that Zoom information handy. If you lose the Zoom information, you can always email or call the Judge’s secretary or you can call the Clerk’s office where they can help you recover that information.

The second numbered paragraph is titled “WITNESS LIST” and includes court ordered deadlines that must be followed. PUT THIS DATE ON YOUR CALENDAR!

Remember, when you count the days before trial, you are supposed to count the weekends too. In this court order, the parties must file their witness lists 20 days before trial, which is a little on the short side. Most court orders require parties to file their witness lists 30 days before trial, allowing for time to depose the witnesses if necessary before trial.

The witness list must include names, addresses, phone numbers and a short summary of the expected testimony. All of these details in the witness list will ensure that neither party is surprised at trial.

A rebuttal witness is a witness who will rebut or contradict the opposing party or a witness listed by the opposing party.

The biggest pitfall that lay people and, sometimes attorneys, fall into is failing to send out subpoena’s on time for trial and the second biggest pitfall lay people fall into is not realizing who needs to be subpoenaed. Let’s discuss who needs to be subpoenaed first.

When do you need to send a subpoena? Subpoenas are required for third party professionals, such as teachers, 911 responders, law enforcement officers, Department of Children and Families investigators, coaches, counselors, and hostile witnesses. Sometimes friendly witnesses will need subpoenas to be released from work in order to attend court. Letters, affidavits, police reports, and investigative reports are not generally admissible into evidence, which means the court will not look at it. If a third party has important information about your case, you must subpoena that third party to come to court.

Not only are subpoenas required to be served, but you have to get the witness served with the subpoena at least 5 days before trial and that’s a little on the late side. As a courtesy, it’s better to serve a witness with a subpoena 10-14 days before the trial, which allows time to speak to the witness before trial if necessary.

How does a self represented person get a witness served? Pro se parties cannot issue subpoenas like attorneys can, instead pro se parties go to the Clerk of Court to issue subpoenas. The party must provide the subpoena and a copy to the Clerk of Court along with $2.00 payable to the Clerk of Court for issuing the subpoena and $40 payable to the county Sheriff where the subpoena is being served. If the subpoena is being served in the same county where the Clerk is, then your job is done. If the subpoena is going to a different county, then you also have to include a stamped and addressed envelope to the appropriate county Sheriff.