This is general information about preparing for a hearing. Each case is different. If you want advice about your particular case, you should contact a lawyer.
How do I get a hearing? Will the court just schedule one?
When you file your paperwork, you should ask the clerk whether you need to ask for a hearing or if the court will schedule a hearing on its own. You can also ask the staff that work for the judge.
In most Magistrate and Family Court cases, the court will send both sides a notice of hearing telling them when and where the hearing will take place. Usually, in Circuit Court, you will need to contact the judge’s office to ask to schedule a hearing. You may be responsible for sending out a notice to the other side telling them the time and date of the hearing.
What do I do to get ready for my hearing?
Now is the time to prepare your case. It is your job to prove your case to the judge. Unless you have a lawyer, no one else will be there to prove your case for you.
You need to get everything together that will help you prove your case. This is called “evidence.” Evidence can be in two forms: (1) witnesses or people and (2) papers, pictures or video.
Witnesses are people who are called into the hearing to testify. Witnesses can be people involved in the lawsuit, like yourself. Witnesses can also be other people who have direct information about the case, like people who saw what happened with their own eyes or heard it happen with their own ears. Finally, witnesses can be people who keep certain records or experts qualified to give an opinion about some part of the case. You CANNOT use letters or written statements from witnesses to prove what happened. The other side has to have the opportunity to question the witness and a written statement cannot be questioned. All your witnesses MUST BE PRESENT TO TESTIFY AT THE HEARING.
It is your responsibility to ask questions for the witness to answer. Before the hearing, talk to your witnesses. Make sure you know what they will say if you ask them questions. You should outline questions to ask your witnesses. Be sure to keep your questions short and relevant.
Evidence that is paper, picture, or video can be anything that helps your case. It might be a lease, a deed, medical records, phone records, a video of your apartment, or a picture of a bruise left on you. The person who took a picture must come to court with you as a witness. You should bring three copies of all paper or picture evidence. You will give one copy to the judge, one copy to the other side, and keep one copy for you. For video, you should contact the court ahead of time to make sure they will have the right equipment available. If you have pictures, videos, texts, or emails on your cell phone, bring the phone and hard copies to the court.
How can I get evidence that someone won’t give to me?
If you need paper or picture evidence but the person who has the papers or pictures will not give it to you, you may need a “subpoena.” A subpoena is a written command by the court that the person with the papers or pictures must give them to you. You can also get a subpoena if you need a person to testify as a witness but that person says they will not come to court.
You can find subpoena forms by asking the clerk’s office where you filed your case. Or on the website for the West Virginia Supreme Court of Appeals here.
The subpoena will have to be signed by a judge or the clerk of the court where your case is filed. Also, the subpoena must be “served” on the person. This means it must be personally given to the person you want to come testify. A subpoena may be served by any person who is not a party and is not less than 18 years of age. A Return of Service form must be completed proving that the person received the subpoena and filed in the case file in the clerk’s office. The clerk’s office may have Return of Service forms they can give you. Make sure to request a subpoena at least 10 days before the hearing.
What else can I do to get ready for my hearing?
Read the paperwork filed in the case. You should read every paper you have filed with the court. You should also read every paper the other side has filed with the court. You need to know what is in those papers. You should bring copies of every paper you have filed with the court to your hearing.
Can I find out what the other side is going to say and bring to the hearing?
It is possible to find out what evidence the other side is going to present through a process called “discovery.” In civil case you generally have the right to get information about witnesses and copies of documents before the hearing. There are complicated rules about what you can get through discovery and there are time limits. If you need to use discovery, you should talk to a lawyer.
Can I try to settle my case before the hearing?
Yes. Cases can settle without a hearing. You can try to reach out to the other side to see if you think you can agree to something. Or you can ask the judge to appoint a mediator to meet with you and the other party. This process is called mediation.
A mediator is a neutral, trained third party, who works with the parties to try to work out an agreement. Mediators can come from many different backgrounds. Some are lawyers, some are counselors, and some are volunteers. The mediator is specially trained to listen to people and to help people reach solutions or compromises. In mediation, each person gets the chance to say what they want and why they want it. They can discuss any feelings or concerns they have. The mediator then tries to help the parties reach an agreement. Sometimes the mediation will take place with everyone in the same room. Sometimes the parties are in different rooms and the mediator moves from room to room. People may go to mediation with a lawyer, but most of the time people go by themselves. Some mediations take only one session. Other times it happens over several sessions. Although the parties may be ordered to attend mediation, they do not have to reach an agreement.
Generally in family court cases, the parties will be required to sit down with the judge’s case coordinator or a mediator to see if they can agree on a plan for custody and visitation or how to divide property in a divorce. However, there are times when this is not appropriate. The court will usually waive the mediation requirement if there has been a history of domestic violence and one party requests that mediation be waived.
Meditators do charge a fee for their services. They may offer a sliding scale fee based on the person’s ability to pay. The costs can also be split between the parties based on what they are able to pay. If you qualify for a fee waiver when you filed your case, you may ask the court to waive the costs for mediation. There is no guarantee the court will waive the costs. If you ask for mediation or the court requires mediation, you should be sure to ask the court how it will be paid for.