When I first started practicing law in 1994, family law matters were dealt very differently than today. The court forms were simple and open-ended, but lawyers would fill them with very long, predictable, and inflammatory statements. Generally speaking, the successful party was the one who filed the court papers first. When we got to court, usually by way of an urgent motion served on short notice (less than a week), the lawyers would haggle and often arrive at temporary terms of settlement for their clients that would address the concerns for the time being. A conference would then be set by the court 3 to 4 months later, and if it did not settle then, it would be set for trial without any further steps.
Boy, have things changed!
Over the last 20 years or so, family law clients have been introduced to the concept of “case management.” Under this system, the court forms were streamlined and easier for everyone to understand and follow. As well, a judge was assigned to “case manage” a court file from the beginning, and if they could not help the parties resolve the matter, they would send it to a different judge to decide the outcome of the matter at trial.
After many years and even more revisions to both the forms and the rules, we now have a case management system where we generally have three main conferences in family law matters:
1. The case conference;
2. The settlement conference; and,
3. The pretrial/trial management conference
I will go through each one, state their purpose, what you can expect to happen, and then offer a tip for success at that stage.
The case conference is generally the first conference you will attend. To prepare for it, you need to complete a standard case conference brief. Depending upon your courthouse, the conference will take place either in front of a senior family law lawyer or in front of the judge. If it is in front of a senior lawyer, they are referred to as a Dispute Resolution Officer (a DRO). This lawyer is on a specialized panel with other well-respected senior family law lawyers in the community who have been vetted for this role by the courts. They will have read the briefs and will listen to the submissions of both the lawyers and the clients. Their role is:
1. to advise the parties as to what further paperwork may be necessary to move the case to the next level, and
2. to offer their commentary as to how a judge might resolve the matter. As they are not judges, DROs cannot make an order, even a procedural one.
If the case conference is in front of a judge, their role is:
1. to advise the parties as to what further paperwork may be necessary to move the case to the next level, and
2. to offer their expert opinion as to how a fellow judge would address the matter.
Although they can make orders, case conference judges will only make an order addressing a procedural issue (e.g., parties to file further paperwork by a certain time), or to make an order on the consent of both parties. If no consensus is reached, the matter will be moved along to allow the parties to bring a motion for temporary orders and set a date for the settlement conference.
Please make sure that you complete your brief in the time frame set out by the Family Law Rules. As a tip, please make sure your brief clearly sets out:
a) what further documents you still need from the other side,
b) why you need them,
c) what documents you still have to provide to the other side, and
d) why you have not provided them yet.
The next conference is the settlement conference. The appropriate form to complete is called the settlement conference brief. Unlike the case conference brief, this brief requires you to set out a detailed offer to settle. The goals of a settlement conference are to:
1. discuss ways to resolve the issues,
2. hear the judge’s opinion on how the court may decide the issues, and
3. set the next steps needed to resolve the issues.
The main difference between a case conference and a settlement conference is the role of the judge. The judge plays a more active role at a settlement conference in trying to get the parties to resolve the issues. The judge will want to hear about any attempts that the parties have made at settling the matter. They are also more likely to give you a strong and specific opinion on how they would resolve the matter, or let you know what another judge is likely to do to resolve the case, and they will likely discuss whether you or the other party would be on the hook for the costs of taking this case to trial. If the parties agree on any issues during your settlement conference, the judge can make an order based on a written agreement. Sometimes the judge will adjourn the conference to give the parties a chance to negotiate or refer the parties to mediation; other times, the judge will simply state that the conference was held and schedule the matter for trial.
Please make sure that you complete your brief in the time frame set out by the Family Law Rules. As a tip, make sure that your offer to settle is clear, comprehensive (detailed), time-sensitive, and, most of all, reasonable.
Finally, if the matter cannot resolve at this stage, the parties will schedule a trial management conference. In many jurisdictions, the trial management conference brief has been replaced with another document called the “trial scheduling endorsement form.” It is a single form, to be completed by both sides of the case, and it sets out specific details of the trial, such as:
1. the issues to be addressed at trial,
2. the names of the witnesses to be called,
3. what they are likely to testify about,
4. the time considerations, and
5. how long the trial is likely to take.
Once the parties attend at this conference stage, the judge may give one last check-in as to the possibility of a pretrial resolution, but more than likely, they will focus the parties on the parameters of the upcoming trial, and that the trial will be proceeding when called by the trial coordinator.
Please make sure that you complete your brief or form in the time frame set out by the Family Law Rules or by the judge at the last conference. As a tip, take the time to think about who you will call as your witnesses and how their evidence is important to convince a judge as to your theory of the case. You will not succeed at trial if you simply call five friends or family members to say great things about you and bad things about the other party.