NOTICE OF TRIAL DUCES TECUM

[Ref]

Hi Soc.

I have court in about 3 weeks and I've been keeping an eye on the clerks page in my county to see if there has been any changes in the case.

The case is CS decrease due to my losing my job in 10/05 and subsequently starting a company after not finding employment. My company is doing well and my partner and I are distributing everything that is not necessary for the sustainablility and future growth of the company. Dispite all of my efforts, I am still not making the same money as I was prior to my old company closing its doors. I have disclosed all of this in my financial affidavit. BM also started working for the first time in 10 years. She now has her master's degree and is working at a respectable level.

She countered for a decrease in visitation and two contempt charges related to my illeged non-notification of overnights out of our home and illeged denial of HER visitation.

Something was entered two days ago called a NOTICE OF TRIAL DUCES TECUM.

1. What is a NOTICE OF TRIAL DUCES TECUM?

2. What types of things should I be looking to do for that?


Thanks!

Ref

[socrateaser]

>1. What is a NOTICE OF TRIAL DUCES TECUM?

First, this particular nomenclature is unfamiliar to me. It could mean a couple of different things, from the civil procedure perspective.

Duces tecum means "bring it with you." This usually means that some specific evidence is being required brought to court with a witness (like your accounting records, for instance).

And, a Subpoena or a Notice Duces Tecum is an order for a witness or party to appear with specific evidence to testify.

But here the notice is for a "trial" duces tecum, so what I'm guessing is that the other party's counsel is informing you that this will not be an ordinary summary hearing based on affidavit, but rather that opposing counsel intends to put you on the witness stand and take testimony from you regarding specific evidence that you are ordered to bring with you.

>2. What types of things should I be looking to do for that?

Unless the Notice tells you what to bring, then you don't need to bring anything but yourself. I don't really know what they're asking for, but you can call opposing counsel up and ask. It could be that they are merely telling you that they will bring evidence and have their own witnesses testifying.

[Ref]

I am really concerned now that this could mean that teen DD will be called to the stand to testify. I really don't want her to be there. She is being put in the middle of a lot of stuff and being badly manipulated by BM.

DD mentioned that a "friend" testified in a CS case who was her age and she also said she thought she should have been at mediation when she was 12 to discuss visitation modification.


1. Is this possibly what this could be?

2. Can I and how would I stop her from being at the proceeding?


Thanks
Ref

[socrateaser]

>1. Is this possibly what this could be?

Yes, possibly. Opposing counsel has an obligation to provide you with a witness list as well as to discover any evidence that they intend to offer at trial to support their case in chief (affirmative case).

They do not have to provide you with a list of rebuttal witnesses or evidence (i.e., used to impeach your witnesses, evidence).

So, if the child is to testify for the other parent on an allegation she has made against you -- or as an affirmative defense to some allegation of yours, then opposing counsel must either provide you with this info, or you are entitled to object to the witness and/or evidence, on grounds that this is an "unfair surprise," and therefore, that you are entitled to a continuance in order to prepare to fairly meet this unanticipated testimony/evidence.

However, you cannot prevent the child from testifying, unless the court believes that the "probative value of the child's testimony is substantially outweighed by the risk of unfair prejudice" to you, such as that the child is subject to duress/influence from the other parent sufficient to make the child's testimony not credible/unfairly prejudical.

>2. Can I and how would I stop her from being at the
>proceeding?

See above.

You could take a chance and not ask, and then use this as a rationale to gain a continuance if the child is called to the stand. Or, you can ask (in writing) now, what evidence/witnesses they intend to introduce to support their case, and tell them that if they don't discover it to you sufficiently in advance of the hearing, that you will move to continue the matter and that you will ask the court to order them to pay your reasonable costs of having to appear at the hearing, unprepared.