What is a Contested Case?
A case is considered to be "contested" when any single issue in dispute is subject to differing positions from the parties. In other words, there is one issue at least on which the parties are not in agreement, or different "positions" exist. This can apply to any issue which is subject to litigation, i.e., custody, support, alimony, equitable distribution of property, simple possession of property, or even in the area of estate litigation or real estate litigation. Short of an agreement between the parties, a case will be "contested" and litigation will proceed on any issue that cannot be agreed upon as a result of a look at the facts and the application of the law to those facts. Typically, and to be specific to the area of family law, an "issue" will be something like custody. If two parties simply cannot agree on who the children should live with , there is a "contested" issue on which the Court must decide the outcome. However, even if there is an agreement on primary custody, there may still be a disputed issue of who gets certain property or assets. Thus, again, it is no different. If parties agree upon their issues, then the case becomes "uncontested", at least at that stage. An Uncontested Divorce is "uncontested" because all parties have agreed. Thus, if any issue that is listed in the Divorce Complaint is not released, then that issue is "uncontested". If the Court makes a decision upon the trial of the case, then that issue becomes a "contested" issue shortly thereafter. This is to say that an "issue" that was agreed upon as a result of a Settlement Agreement is nevertheless "contested" in that that Complaint or Counterclaim was filed.
Types of Cases that May be “Contested”
Types of Cases That Can Be Contested in Court
For the sake of this article, we will divide contested cases into three categories: divorce, wills, and lawsuits.
Divorce
The most common types of contested cases that you might find in a courtroom involve divorce. In these situations, the couples disagree about the terms of the divorce settlement and perhaps the dissolution of certain assets. A divorce can be a complex legal experience that may require the supervision of a judge to ensure that everything is resolved fairly and legally.
Wills
Wills are another example of a situation that could become contested in court. For example, if you have a will and your spouse thought that she would inherit your prized baseball cards collection only to find out later that you had a private agreement with one of your children that they would receive them instead, that could result in a contested wills case. In addition to examining wills, courts can interpret trusts and determine the meaning of codicils. All of these items can form the basis of a court contest.
Lawsuits
A common type of contested case, lawsuits involve two or more people who do not agree on the outcome of an event. There are many types of lawsuits, but most fall into one of three categories:
While many people find it worthwhile to seek out legal representation whenever going through any type of litigation, hiring a lawyer or pursuing a case on your own, one thing is for sure: your case will likely be contested, and your rights are therefore best protected by the courts.
Consequences of a Contested Case
If a case involves contested property, interest, or children, it requires special attention. Normally when a person elects to go to court, they think that if a judge hears the case and applies the law, then an equitable result will be found. However, in contested cases, there are three things courts do: 1) play referee, 2) initiate discovery, and 3) appoint a guardian ad litem.
First, courts play referee. In a normal case that is ready for trial, the court does not intervene. Mostly, an attorney will send a list to the clerk before trial on what is known as a Notice of Readiness, stating whether both parties are ready for trial, whether certain requirements under the law were met, and whether there are any exhibits in question such as a business evaluation or accounting records. With a contested case, the court gets more involved. There are typically many issues that the parties will not agree on. Hearings are set or motions are filed with the court to rule on the issues. These can be pre-trial motions, discovery motions, or even hearings set in front of a trial judge to make sure things move along to a trial date. Because there are so many issues to cover before the trial even starts, it may appear to the casual reader that the trial should be simple. Think of all the work that had to be done before you got the trial date and that amount of work is going to happen during the trial. A contested case dismissal is going to be costly.
Secondly, once the court is involved, the court has to deal with discovery. An opposing attorney will have every right and the obligation to require you to produce documents by a certain time. If they are not produced, a motion must be filed with the court to compel (make you produce the documents). A judge will have to review the documents and a hearing is set to decide what documents must be produced. Sometimes, an evidentiary hearing is held to determine whether the documents have been altered or destroyed. This means a judge will hear the witnesses testify under oath that the document is original. Also at stake is whether a witness must testify in the case or produce documents in the case. The amount of evidence that changes hands before trial is substantial, as you may know. These steps are even more important in a contested case because you need to know in advance what everyone is going to say about you at the trial. The last thing you want is your boss to find out what you said about him by his attorney because he overheard your conversation with the other attorney in the hallway at the courthouse before the next day’s trial. We are talking about more than just a courtroom.
Third, with a contested case, the court will often appoint a guardian ad litem. A guardian ad litem is a neutral third party who will listen to the arguments of each side, review the documents, review the history of the children, and submit a report to the court. A guardian ad litem is usually required in contested cases involving children. When this happens, the judge will hold a hearing to listen to the guardian ad litem’s recommendations at the next court date. The parties will have an opportunity to contest the report. The judge may review the report, talk to the guardian ad litem, and give their opinion. The judge may accept the recommendation or dismiss the report and allow the guardian ad litem to testify at trial about the matter. Sometimes, an attorney ad litem is assigned to the case if there is a child over the age of 18.
With a contested case, there will undoubtedly be a temporary order to set some parameters in place. Sometimes that involves one party moving out of the house, paying child support, or even allowing access or visitation to different parties. There are no guarantees that these orders are going to change once the judge hears the case. Also, there are times where a contempt order is requested for an act that is pending while the case is in the court’s hands. For example, if the husband takes joint property to his new wife’s house or sells the house during a divorce, sometimes the judge will require that the husband move back to the marital home until the dispute is resolved. A temporary order in a contested case is just as serious as a final order.
So, the bottom line is: when a case is contested, the judge has to get involved. The judge becomes extremely involved in contested matters. Sometimes, the judge makes rulings on issues even before the trial. Even though a trial will take place, those issues could be overruled or changed; however, the judge is extremely involved. Because of that, there is a cost here as well. Even with a short trial, the preparation for trial is going to be extensive. In this economic world we now live in, a contested case is costly.
Contested Court Process Steps
In a contested court process, the steps leading up to and through the trial present both unique challenges and opportunities to the parties involved. A contested proceeding is not like a settlement case. Each party’s goals are in opposition to the other party’s goals. This is a case where each party is not hearing what the other is saying. Rather, each party is listening to respond. By that I mean, in marital litigation, that there may be a small distance between each party, but at every turn they will try to dig in on their position, seeking to convince the Court that they have the better position. Sometimes, the positions are not too far apart, and reasonable people could work it out. However, the distance between the parties causes sometimes insurmountable problems with coming to a final resolution.
In a contested matter, the steps leading to a trial include motions by each party. A party will file what is called a "Motion" before a Judge with supporting papers called "Certification" which explains why the party is applying to the Court. The other party will then usually file a responsive Certification explaining their reasons for opposing the Motion. This rebuttal is usually comprised of a written document which will include the agreement or disagreement with the moving party’s Certification. The opposing party’s Certification may include reasons why the moving party’s position is wrong, and the reasons why their position is right. Sometimes, the opposing party will even ask for relief that is opposite from what the moving party has requested.
The Court will schedule a trial preparation conference after Motion or a 14 Point Certification makes its way to the Judge’s chambers. The Judge will review the matter before the CTC and make a determination as to whether he/she is going to rule on the Motion, or the matter should go forward to trial. The Judge will call the parties in and take a look at the papers. Sometimes, the Judge will ask questions to clarify what the issues are. The Judge may offer an opinion. The Judge may suggest mediation. However, the Motion and Certification are not usually dealt with, and the trial is scheduled.
There is discovery in contested cases. This includes the exchange of documents, Interrogatories, which are written questions that require a written answer under oath about many things, often including but not limited to one’s finances. There may be more extensive discovery including the deposition of a party or a third party. A deposition is a question and answer session, where one party is placed under oath, and the other party asks them questions, typically in front of a court reporter, who later prepares a transcript of the questions and answers.
As the matter progresses, the parties will often retain expert witnesses to evaluate the issues involved in the matter and advise the court. For example, a mental health expert may be retained to provide an opinion regarding the behavior of each of the parties, especially in an issue of custody or parenting time. A real estate appraiser can provide an expert opinion as to what a house is worth, as it relates to equitable distribution of marital assets. An accountant can provide a forensic analysis of the financial records and provide an expert opinion regarding income or tax matters involved in the equitable distribution. There are many instances where an expert is required in a contested case in order to provide an expert opinion to the court.
There are also various trial preparation steps involved in a contested case. There is usually a Pretrial Conference, where the parties and/or each party’s attorney has to prepare a Pretrial Statement. This statement summarizes the facts of the case, and sets forth the desired result for each of the parties in a bullet point style. Occasionally, a party will provide a Memorandum of Law setting forth the legal basis for their request. Often, a proposed Order is submitted to the Court prior to the trial. The Honorable Judge Johnson has held on many occasions that the parties need not submit a proposed order if the attorneys have made their submissions in the Pretrial Statement.
During the course of contested litigation, there may be multiple motions filed and heard before trial. For example, there might be a Motion for Exclusive Possession of a Residence during the litigation if the parties are still living together. There may be a Motion for Child Support heard on an emergent basis if it appears that child support is not being paid. There may be additional Motions for discovery sanctions if a party is withholding information. This, and more, occurs during the course of contested litigation. The parties will schedule the trial date and can pretry the case through a free service through the Court (JIB) so the parties can see how their case performs.
How to Prepare for a Contested Case
Regardless of what kind of case you have, you will most likely go through two phases of litigation which are the uncontested phase and the contested phase. If you are in the contested phase of your case then you likely already know that you are looking down the barrel of a headed to trial case. No one likes to be there and it can come sudden or slowly depending on the terms of the case.
The first thing you should do if you are heading into a Contested Phase of your case is to pay off your lawyer so that you can move in a result oriented manner and they are happy with your representation. The next thing you should do is to put together a evidence binder including a timeline of all of the events you believe are significant to your case. If you have a child custody case, you will want to make notes about when the other parent violates the orders, takes the children without permission, instills negative memories or perceptions about you, or fails to follow the terms of the order . If you have a child support case, you will want to pile up all of the evidence you have regarding employment, second hourly jobs, paystubs, bonuses, and anything else that may be relevant to your income for purposes of satisfying child support.
In the unfortunate circumstance that you do not have an attorney and are working as a pro se litigant, the best thing you need to do is put all of your evidence with a timeline of events so that you can submit it as part of your complaint or response to the court. If you have an attorney, the worse thing you can do if you are in a contested phase of your case is to sit back and hope the lawyer magically wins the case for you. You must be an active participant at this stage of your case and have a logical argument with it all organized to present to the judge for consideration.
Alternatives to a Contested Case
In some instances, the parties may wish to avoid a contested hearing. In such situations, parties can reach an agreement without going to a hearing. Such resolution of an issue avoids the need for active litigation and may limit the exposure of all parties.
Parties are encouraged to consider the possibilities for alternative dispute resolution ("ADR"). ADR may involve a mediator or arbitrator to assist the parties with resolution of the issues presented in the case. It is important to remember that any settlement reached in either of those processes must be reviewed by the court, and requires entry of an Order by the court to memorialize the revised plan in order to become effective.
In mediation, a neutral person meets with the parties and possibly their counsel in an attempt to settle the case prior to trial. The mediator does not usually make a recommendation to the court. (In rare cases, the mediator may be requested by the parties to make a recommendation, but typically, a neutral or the parties is selected). Rather, the purpose of the mediator is to assist the parties in reaching an agreement between themselves about the issues that are presented in the case. In this process, the mediator meets with parties individually in private meetings to discuss potential solutions to the conflicts between the parties. The mediator may speak to each party together or in individual meetings.
The parties are encouraged to attempt to resolve the issues in the case. Certainly, any resolution reached by the parties will be less contentious than that resulting from a contested court proceeding. However, ultimately, the court will require a resolution via order. Arbitration is an arrangement in which parties submit their disputes to one or more neutral third persons ("arbitrators") for a final and binding decision. The arbitrators have authority to make any decisions which a judge in a court of law would be entitled to make. While arbitration is sometimes seen as a more efficient way to settle disputes, it also carries the risk that the arbitrator(s) decision cannot be appealed unless there is a significant legal error committed by the arbitrator(s).
A proposed arbitration plan must be submitted to the court for review and entry as an Order for approval of the arbitration plan. Once the arbitration is concluded, the award resulting from the arbitration is entered as an order of the court. In this way, the arbitration has the same impact on the parties as a judgment following a court hearing.
Conclusion to Contested Cases
It should be apparent how important it is to an individual’s rights to understand what is "contested" or "adverse" and how the court will use that understanding to grant or deny a request. The adjectives "contested" and "uncontested" (or "agreed") are used throughout the court system (from the initial filing up through the appeal of an order) to determine how a court will proceed on a particular matter.
The term "contested" applies to active litigation it has nothing to do with a divorce or a dissolution case that are going forward without any issues or dispute between the parties. A contested case can still mean that parties are legitimately agreeing on everything necessary because of good legal drafting or understanding of the law. However, the term doesn’t mean you can avoid the steps to ensure you have legal protection for your rights. The easiest point to understand is that when filing documentation with the court, call the case an "agreed" Order, Notice, Motion , or whatever fits the bill for what you are submitting to the court. This simple step demonstrates to the court exactly how the case is proceeding, including informing the judge the case has not been submitted to the court for a decision.
If your case is adversarial in nature, recognize it and plan accordingly. It may seem unnecessary to draw a point such as this out but the court may deny your request for relief based on the other parties position. Attend all dates set by the court and appear on time. The court must proceed efficiently to manage the docket, control the flow of shared resources between the parties, and make sure all matters before the court are resolved appropriately. When you do not appear, the case cannot advance.
Navigating contested cases should now be clearer and easier for future business before the court. Doing so will preserve all of your rights (and also the other party). Notepads such as the above should always support your understanding and what you need to do.