Family lawyers and financial professionals offer advice on how to prepare for your next trial.

Courtroom StrategiesUse of the MMPI II in Custody Litigation

The MMPI II, when used in custody litigation, can and should be challenged as a tool in determining a custodial placement of the minor children. First, it was not developed for use in custody litigation: its original use was to prevent the mentally ill from entering the military in World War II.

Second, it is a personality assessment instrument that has nothing to do with which parent will better serve as the primary custodial parent. Since the scoring is done by a proprietary program – which shows up in phrases such as “people with this personality usually…” – the psychologist cannot even explain why certain answers suggest certain personality types. The test taker is compared against a “normative group” of about 2,500 people who previously took the test, and the test-taker’s answers are scored compared to the normative group’s answers. Few members of this normative group are going through a divorce and even fewer are custody litigants.

The third and most important point is the list of so-called “critical items” that the scoring program highlights. These should be reviewed with the client as it might change the focus of the results. Check to see whether or not the psychologist sees the parent after they took the test to see whether or not those critical items were reviewed. If not, the scoring would be skewed.

– Lynne Z.Gold-Bikin is an AAML and IAML Fellow, and a Partner at Weber Gallagher.

Summaries Can Help You Tell a Story at Trial Quickly

Demonstrative summaries are great tools to communicate your story, or theory of the case, to the court. When done in real-time, during trial, you are not only creating a visual for the court, but many judges will take notes along with you.

Unlike Rule 1006, demonstrative summaries can highlight or cherry-pick data, incorporate summaries of witness testimony, and may be created during trial. One effective use of demonstrative summaries is to compare and contrast inconsistent evidence on an important issue. Not only are you teaching your theory of the case, but you are also implicitly highlighting the other party’s lack of credibility.

Here is an example of this technique. On one side of a white board, list one or more of the opposing party’s statements that are inconsistent with your theory of the case. Make sure to write the witness’ words down accurately, in real time, and verify with a leading question that your writing is accurate. On the other side, list the contradictory data from documentary sources or other witness testimony, also as it is elicited, to show the overwhelming contradiction. Use the chart during closing argument to put an exclamation point on the issue.

– Patricia Kuendig is a Partner at Dodd & Kuendig.

What to Do Before Questioning a Financial Expert

Preparing for TrialMost professionals – including myself – find it difficult to admit that we feel uncomfortable in a certain subject area. And it can be difficult to ask another professional for help. Yet many attorneys will admit that their eyes glaze over when they start to hear financial terms and have to deal with numbers.

My experiences in the courtroom suggest that it would behoove some attorneys to hire a consulting financial expert to clarify the financial issues in a case and to help develop questions for a financial expert witness.

The appropriate questions will vary depending on the case. The attorney will want to learn some of the financial language in order to avoid asking embarrassing questions or making embarrassing comments. For example, an attorney questioning a husband asked, “What is your income this year?” He responded, “My year-to-date earnings are….” To which the attorney replied, “I don’t want to know year-to-date, I want to know this year.” Of course, they are the same, and the attorney was slightly discomfited.

– Harriett Fox (CPA) is a Mediator, Forensic Accountant, and Collaborative Divorce Practitioner.

Beware of Attorney Tricks and Witness Traps

The following ABCs of testifying can aid and help protect the expert from a wily attorney:

A.  Avoid absolutes
B.  Bulletproof reports
C.  Have class and act as if in a class
D.  Pay attention to detail
E.  Know elements
F.  Lay a foundation
G.  Don’t guess
H.  Beware of hypotheticals
I.  Don’t interrupt
J.  Don’t use jargon
K.  Be knowledgeable
L.  Make no legal conclusions
M.  Missing issues in report creates issues for you
N.  Appear neutral
O.  Don’t answer a question if there is an objection pending
P.  Be paranoid
Q.  Be quiet after you answer the question
R.  Respond only to questions asked
S.  Keep it simple
T.  Think before you speak
U.  Understand the question
V.  Keep an even tone of voice
W.  Show wisdom
X.  Use x-ray vision (see through the cross-examiner’s motives)
Y.  Be yourself
Z.  Testify with ethical zeal

– Jeffrey W. Brend (JD, CPA) is an AAML and IAML Fellow, and a Partner at Levin & Brend.

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