Page 22 - Phoenix Vol 11 No 3

MITCHELLREICHMAN| FamilyLaw
Navigating the Rapids: Temporary Orders Hearings in Maricopa County
One of the most anxiety-pro- ducing experiences for both a family law client and their at-
torney is navigating through the pro- cess relating to a Maricopa County temporary orders hearing. e client’s anxiety is easy to understand. It may be their rst experience in a contested hearing, the rst time a judge is going to be presented with evidence con- cerning their case, or the rst time ever testifying. Almost always, there is a lot at stake. No matter how many years a lawyer has practiced, what produces their anxiety is that rules of evidence and procedure are o en ig- nored without consequence and there is insu cient time allocated to put on all the important evidence for the judge to hear.
CONFLICTING RULES
e rst thing to determine is what rules are going to apply to discovery obligations in connection with the temporary orders hearing as the Rules are contradictory. In most cases, the Rule 49 deadlines for initial disclo- sures will expire prior to the hearing. Rule 49 also provides for disclosure of witnesses and expert witnesses in particular. e court may not allow you to call any witness who is not dis- closed at least 60 days before trial or by a di erent deadline ordered by the court. If the court has not provided for a di erent deadline, it is typi-
cally impossible to disclose these wit- nesses 60 days be- fore the temporary orders hearing.
However, Rule 47(f) provides that
not later than three days before the date set for the temporary orders hearing, the parties must exchange exhibits and witness lists, including the subject of each witness’ antici- pated testimony. ere is no reference to the Rule 49 requirements in Rule 47. It is uncertain whether exhibits and witnesses that are not disclosed un- til three days before the hearing will survive a challenge of untimely dis- closure.
ere are further and di erent dis- closure deadlines not consistent with either Rule 47 or Rule 49 found in Rule 76.1 which compels parties to le a pretrial statement 20 days before trial. e pretrial statement must in- clude a list of exhibits each party in- tends to use at trial, a statement that all exhibits and reports of experts who have been listed as witnesses have al- ready been exchanged, and a list of witnesses each party intends to call at the trial.
TRIAL SETTING MINUTE ENTRY ORDER
If the rules confusion was not enough, it can be compounded by the court’s trial setting minute entry or- der. ere is no uniformity among the judges as to the form of pretrial min- ute entry order that is issued. O en, the form includes new deadlines for compliance with Rule 49 and for ex- changing exhibits. Occasionally this order does not mention submission of a pretrial statement. Commonly, the deadline for submitting a pretrial statement is shortened to less than 20 days before the hearing. If there is no speci c reference to any of the disclosure deadlines – or any of the
other rules that contain disclosure deadlines – it is implied that Rule 47 disclosure deadlines have been e ec- tively overridden.
RESOLUTION MANAGEMENT CONFERENCE
e Resolution Management Con- ference (RMC) is an opportunity to address these con icts and clear up some of the ambiguity. ese include the possibility of having con icting disclosure deadlines, being unable to present information, or be in a posi- tion of having to argue against or for the admission of testimony or docu- ments based on lack of timely disclo- sure. A disclosure schedule must be established at the RMC. Prior to the RMC, serve requests for production of documents, uniform and/or non- uniform interrogatories. en at the RMC, ask the court to set deadlines for all the following:
• Compliance with Rule 49.
• For the disclosure of expert opin-
ions and reports.
• To disclose witnesses and their an-
ticipated testimony.
• To respond to outstanding discov-
ery.
• For the execution of releases for
mental health and/or medical re-
cords.
• For a preliminary exchanging of
lists of witnesses and exhibits at least seven days prior to the sub- mission of a pretrial statement.
• e joint pretrial statement and ex- hibits to be delivered to the court not less than seven calendar days prior to the hearing
Advocate for an order compelling the ling of a joint pretrial statement
Mitchell Reichman is an Arizona State Bar board certi ed family law specialist and attorney at the Phoenix law rm of Jaburg Wilk. He is rated AV Preeminent by Martindale- Hubbell. Mitchell is named a Best Lawyer in America by Best Lawyers, Arizona Top 10 Family Law Lawyer by Arizona Business Magazine and a Southwest Super Lawyer. Mitch is experienced in representing clients in high-con ict divorces.
ATTORNEY AT LAW MAGAZINE · PHOENIX· VOL. 11 NO. 3 22