NATALIA MATUSIK - ATTORNEY AT LAW

Matusik Law, LLP

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COURTS AND BURDENS OF PROOF THAT APPLY

It is important that our clients understand the difference between different courts where their cases are litigated.



FAMILY LAW COURT

Family Law Court is a Court of Equity. In Family Law Court the Constitutional Right to a jury trial does not apply (jury trial means that the facts, not the law, of your case is decided by a jury of 12 peers). Rather, in Family Court, the judge is the one who makes all the decisions. In Divorce proceedings, for instance, the judge issues temporary rulings (or orders) prior to the dissolution of marriage. Those range from temporary orders regarding child custody, child visitations, child support, spousal support, attorney fees one party may have to pay to the other party while the case is pending, any move out orders, temporary restraining orders, etc. If the two parties cannot reach a settlement agreement through negotiating with one another (or through their respective attorneys) or through mediation, the case is set for trial. There is no middle ground, the case either settles or it proceeds to trial. There is not an option to ask the judge for an indicted ruling. In contrast, in a criminal case, even if two sides do not reach an agreement, a criminal defendant, through his attorney, or by if he/she represents himself/herself, can ask the judge for an indicated sentence and accept the plea to the court. This concept does not exist in Family Court. Once the case proceeds to trial, this is when both sides present evidence in form of witnesses’ testimony, exhibits, financial documents, other party’s criminal records, etc . The judge makes rulings on what is and what is not admissible at trial, and he/she rules on the objections posed by each party, determines the law, which applies in the case and most importantly makes the factual determination (decides who tells the truth, whom to believe, what actually happened, which evidence is or is not credible, etc). In criminal and civil cases, on the other hand, the role of making a factual determination is left to the jury.


Ultimately, after the trial concludes, the judge makes the final ruling. Indisputably, the judge in Family Law Court holds an incredible amount of power as to how your case is decided and the consequences each party will bear at its conclusion. It is important to note that with respect to alimony, child support, child visitation orders, the case is not closed indefinitely. As circumstances change, the parties can return to court to re-litigate the issues again asking for a change in the judge’s former rulings.


Family Law Court, although it is an equity court, falls under the umbrella of civil law. The Burden of Proof is by the Preponderance of the Evidence, meaning in order to prevail on a claim, claimant must prove that something is more likely than not. Think of it as a scale. If you put evidence on the opposite ends of a scale, the evidence that prevails is the one that shifts the scale to one side, however slightly.



CRIMINAL COURT

Criminal Court has a special set of procedural rules, depending on whether a person is charged with a misdemeanor or a felony. The most important aspect of criminal law is the accused person’s right to have the case decided by a panel of 12 peers, twelve people from the accused’s community who should judge the facts of the case objectively, without bias in a fair and collective manner. It is important to remember that the juries judge the facts, not the law in each case. The judge makes rulings as to what evidence is admitted and presented in front of the jury, makes rulings on the objections posed by attorneys (essentially making a decision whether a witness should or should not answer a question posed), and finally it is the judge who sentences the defendant, if the person is convicted. Although at times the judge is limited in his/her discretion imposing a sentence because of sentencing laws, the judge is the one who makes the decision of what sentence the defendant receives at the end of a jury trial. The only type of a case, in which the jury makes a recommendation as to the sentence to be imposed is a Death Penalty case (that’s why the Death Penalty case consists of two phases: guilt and penalty phase). The jury makes a recommendation as to whether life without the possibility or death should be imposed, but the judge is the one who ultimately sentences the defendant.


In criminal law there are two types of cases: misdemeanors and felonies.


In general, misdemeanors are defined as crimes, for which the defendant cannot receive more than 6 months/one year in a county jail and felonies are defined, for which the defendant may receive a prison sentence. There are  different exposures for different crimes and just because someone is charged with a felony does not necessarily mean they would be sent to prison. This is a very simplified overview of misdemeanors and felonies as with the recent changes in California sentencing laws, a lot of people who have received prison sentences actually serve them in county jails. And not every person convicted of a misdemeanor receives a jail sentence. Sentences for misdemeanors in terms of confinement range from zero, to house arrest, community service, jail sentence served on work release to actual in custody confinement. Similarly, when a person is convicted of felony that does not mean they will necessarily go to state prison. Sentencing in felony cases is complicated and depends on an array of factors.

Procedurally, from the moment of arrest, there is a big distinction between felonies and misdemeanors.



FELONIES

If you get arrested on felony charges, and are in custody, the Prosecution has two court days (that means business days, so holidays and weekends are not included) to bring you in front of a judge for Arraignment. At Arraignment, you will enter a plea of “Not Guilty,” and two hearing dates will be automatically set.


Felony Settlement Conference

The first hearing date will be set in five court days from the Arraignment, and is usually called a Felony Settlement Conference or “FSC.” The FSC gives you and the prosecution an opportunity to try to settle your case.


Preliminary Hearing

The next court date, usually eight or nine court days after your Arraignment is called the preliminary hearing. This is the first evidentiary hearing in the process when witnesses testify. At the Preliminary Hearing, the prosecution is required to present to an impartial judge the evidence and must prove that he/she has met a burden of probable cause. At the Preliminary Hearing your attorney has the opportunity and the duty to cross-examine the prosecution witnesses and to make motions to exclude prejudicial evidence in order to attempt to have the case dismissed by the judge.


Held To Answer

If the judge finds that the prosecution has met its burden of proof at the Preliminary Hearing, he/she will issue an order that the defendant has been “Held to Answer,” meaning that there was enough evidence for the case to move forward. This means that you will be arraigned again within 10 court days and that the D.A. will file an “Information”. After the defendant is arraigned on the Information, the prosecution has 60 calendar days to bring the case to trial.


***All of the timelines are based on the accused exercising his/her constitutional rights to a speedy trial. An accused (and often does for a number of reasons) “waives time” and stretch out the process, and the timeline can change. Only you in consultation with your criminal defense attorney can decide whether or not to “waive time.” There are many strategic reasons to “waive time,” and it is almost always done to benefit you and the preparation of your defense.


It is important for you to know that in vast majority of cases, the Preliminary Hearing is almost a formality and the defendants almost always are held to answer. It is also important for you to understand the entire process as most criminal defense attorneys when they get the initial retainer in felony cases, their representation only covers representing you through the preliminary hearing only and does not extend to a jury trial.

Since most defendants are held to answer at the conclusion of the preliminary hearing and they cannot afford to hire a private attorney all the way through trial, a lot of these cases change hands and many end up going to a Public Defender. If you understand how the process works, you will understand that it is very important to conduct a preliminary hearing with a trial strategy in mind. That means conducting investigation, aggressively cross-examining the witnesses thus locking them into their version of events and attacking the prosecution’s case from the very beginning rather than treating it as a mere formality with an obvious “held to answer” result.

At trial, the Prosecution has the Burden of Proving every element of each crime charged Beyond a Reasonable Doubt.



MISDEMEANORS

The Prosecution has one year from the alleged commission of the crime to file charges against you. Once you get arrested for a misdemeanor but bail out or get cite released, you will have a future date set for an arraignment. If you are out of custody at the time of the arraignment, the Prosecution has 45 days to present the case and prove each element of the alleged offense to a jury beyond a reasonable doubt. Of course, if the defendant waives time, the 45-day waiver is no longer in effect. Remember that the 45-days is your constitutional right your attorney needs to explain to you.

If you are arraigned while in custody, that time waiver is even shorter – 30 days. So if you are in custody at the time of the arraignment, the Prosecution has 30 days to present the case and prove each element of the alleged offense to a jury beyond a reasonable doubt.

Usually after the arraignment but before a jury trial, a Trial Readiness Conference (TRC) is set when the discovery from the prosecution has been obtained and two sides can enter into meaningful negotiations as to any potential plea agreement.



CIVIL LITIGATION COURT

If you have suffered a personal injury or you or your business suffered monetary damages as a result of someone’s intentional, neglectful or reckless act, your case will most likely be litigated in a civil court. Examples of civil cases are any type of a tort action.

Tort law is the body of laws that enables people to seek compensation for wrongs committed against them. When someone’s actions cause some type of harm to another, whether it be physical harm to another person, or harm to someone’s property or reputation, the harmed or injured person or entity may seek damages through the court.

Damages are a monetary award ordered by the court to be paid to an injured party, by the party at fault. Damages may be awarded in compensation for loss of, or damage to, personal or real property for an injury, or for a financial loss. 

The types of damages that may be awarded by the court for civil wrongs, called “tortious conduct,” of an individual or entity include:

  • Medical expenses
  • Pain and suffering
  • Loss of earning capacity
  • Punitive damages


Although a vast majority of civil cases settle out of court, it is important to remember that unlike in most courts, other than criminal court, a litigant has a Constitutional right a jury trial. The majority of civil litigation attorneys settle their clients’ cases and very few actually have conducted a jury trial.

Their practice is limited to conducting depositions, filling endless motions and eventually settling the case, which may not necessarily be in their client’s best interest. This is why having a vast trial experience gives an attorney an advantage in the civil litigation arena. A skilled trial attorney is not afraid of exercising your constitutional right to a jury trial in a civil matter.


The burden of proof in most civil litigation claims is by the Preponderance of the Evidence, meaning in order to prevail on a claim, claimant must prove that something is more likely than not.

However, there are claims, which require a higher burden of proof, called Clear and Convincing Evidence. This burden of proof is higher than Preponderance of the Evidence but not as high as Beyond a Reasonable Doubt, applied in criminal courts, which is the highest burden of proof in our jurisprudence.

Although settling your case may be the most cost-efficient way of resolving it and getting justice, there are other ways of litigating a civil case, such as arbitration. Because the litigation cost is what often drives the course of litigation, it is important that your attorney is knowledgeable in areas of meditation, non-binding and binding arbitration areas.
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