In my last post, I addressed the structure of direct examination, proper form, and use of the Habas method of preparation. This post will cover the admission and use of exhibits, witness management, and how to avoid and respond to objections.
Admission of Exhibits in Family Court
When is the best time to admit an exhibit during a witness examination?
(a) At the beginning of the examination,
(b) At the point in the exam that the relevant topic is being discussed, or
(c) Neither of the above.
Trick question. The proper response is (c) because the best time to admit an exhibit is before the witness even takes the stand. In “Advocacy Tip: Direct Examination 101,” I emphasized the importance of a rhythmic or conversational tone when conducting a direct examination. Admission of exhibits tends to disrupt that rhythm, often generating objections about foundation or admissibility.
Whenever possible, admit exhibits in advance through stipulations or a pretrial exhibit conference with the court. By doing so, you preserve the flow of the examination, allowing for a more natural exchange with your witness. Pretrial admission is not always possible for a number of reasons, but often it’s due to poor planning. Get your act together earlier: such an effort will enhance your examination (and reduce your stress as well).
All of that said, we must sometimes use the witness to lay the foundation for the exhibit. A classic example of this is a record keeper laying the foundation for a business record. Let’s deconstruct what “laying a foundation” means.
Laying the Foundation for an Exhibit
When we lay a foundation for an exhibit during direct examination, we must provide the judge with sufficient proof that the exhibit is what it claims to be. In doing so, you need not conclusively prove that an exhibit is authentic, only some reasonable proof that it is what the witness claims it is. You do this through questions to the witness regarding the context of the exhibit. (What is this document? When was it created? How did you get it? Why is it important? etc.)
If the opposing party challenges its authenticity, that party can offer evidence to dispute its reliability either through a voir dire examination of the witness before admission, or later during his or her case. If challenged successfully on voir dire, the exhibit is barred. If successfully challenged after the fact, the court will give it no weight.
The foundational requirements depend upon the intended use of (or relevance) of the exhibit. For example, say you want to admit an email solely to prove the witness was notified of some event. For that purpose, the foundation for the exhibit need only establish that the witness received the communication, “This is the email I received on January 13th notifying me of Tommy’s failing grades…” Distinguish that from a situation where the author of the email is important. For example, if the other parent sent an email stating, “I don’t care about the kid’s grades, it doesn’t matter…” In that instance, your foundation must tie up the other parent as the author (How to do that is beyond the scope of this article, but consult my book Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy on foundation strategies generally.)
Remember: even if you can properly authenticate an exhibit, it still must be proven to be relevant and meet the other substantive rules (not hearsay, original writing, rule of completeness, etc.).
Admitting the Exhibit Through a Witness
Here is a summary of the protocol to admit an exhibit:
- Have the proposed exhibit marked for identification.
- After marking, show it to the opposing counsel or reference its identification number if copies have already been provided.
- Seek leave of court to approach the witness (if a live hearing). If the hearing is via videoconference (e.g., Zoom), there is no need to do this.
- Have the witness lay the foundation to authenticate the exhibit. If the document has already been authenticated by admission, this exercise may be unnecessary.
- Tender the exhibit to the Judge stating, “Petitioner offers the email from Sally to Tom dated February 6, 2021 as Petitioner’s Exhibit 12.”
Using Exhibits in Family Court
Sometimes the exhibit speaks for itself: in other words, it’s offered simply for the information it contains (a bank statement for example). At other times, the exhibit needs an explanation to make sense. At still other times, the document speaks for itself, but commentary helps add color. For example, if an email exchange between the couple summarizes a relevant disagreement, have the witness through whom you are offering the exhibit, lay the backdrop: the events leading up to the disagreement and the “who, what why,” etc. of the conflict.
Using a Witness to Help the Court Understand the Exhibit
Some things to remember when using a witness to help understand the exhibit or give it extra punch:
- Make sure to admit the exhibit before you start asking the witness questions about the actual text.
Of course, you can inquire to authenticate it in advance of admission.
- Make sure the judge has a copy if you intend to ask questions about it.
- Don’t just have the witness read from the exhibit.
The judge can read it herself or himself. Ask the witness to explain the text or give it context, “John, in Exhibit 14, you said… Why did you say that?”
- Remember the W & H siblings: Who, What, Where, When, Why, and How.
Frame the picture for the court.
- Consider using a projector when examining a witness on a particular writing.
That way you can use a laser pointer to bring the judge’s attention to clauses that you are asking about. Check out the “Trial Pad” app, which is a great resource to help you use exhibits as demonstrative aids.
5 Witness Management Tips
Witnesses came in all shapes and sizes. Some witnesses are naturals while others are utterly ineffective. Here are a few thoughts on enhancing your chances of success.
1. Prepare the Witness (But Not Too Much).
This goes into the “duh” folder but it is worth mentioning. A witness is usually more effective if they have some type of primer on the rules of the road and a description of the general topics to be covered. But don’t overdo it. As a newbie, I tried a jury trial. My client was a mother whose baby aspirated and died. Very sympathetic, right? Unfortunately, I rehearsed her so much – trying to ensure that she got her side of the story out – that she came off cold and distant. There were no tears for her in the jury box.
2. Use Your Eyes.
The eyes are a tremendous witness control device. When you maintain steady and deliberate eye contact with the witness, you help guide the witness. It also helps maintain the conversational tone. This again, is why I discourage scripting your questions.
3. Listen to the Witness.
While fundamental, it’s worth repeating. Many are so focused on getting in our proofs that we don’t actually listen to the witness. When we practice deep listening, it allows us to take advantage of unexpected information by way of follow-up questions. It also allows us to gauge the witness’s energy levels and helps us pace our questioning.
4. Slow it Down (or Speed it Up).
Pace is another strategy to help witnesses perform better. Sometimes, when we speak too rapidly, the witness will respond in kind. This rapid “where’s the fire” colloquy rarely persuades, and you risk losing the judge. When a witness is frightened or tentative, slowing down your pace helps the witness (and the court) understand the questions. But when you have a laconic “just the facts, Ma’am” personality on the witness stand, varying your pace makes for a more interesting presentation. Speed up or slow down at intervals to keep the court’s attention.
5. The Forgetful Witness.
The forgetful witness is always a challenge. First, anticipate what prompts you may need to refresh the witness’s memory. Have those readily available. While ordinary it’s not advisable to lead the witness, under the federal rules and many state rules, you can lead the witness when covering foundation testimony. Refreshing a witness’s memory is foundational and you can consider a leading question like the following, “Jane, if I were to show you your pay stub, would it help you remember your weekly income?”
Inasmuch as you are on offense when presenting a witness on direct, you must deal with the defense: opponents defending their goal line, trying to keep information out of evidence. They do this through objections. Objections are either procedural or evidentiary. A procedural objection might be based upon failure to give proper notice of the exhibit in advance or judicial estoppel. Evidentiary objections are based either upon relevance, failure to provide a proper foundation, or a substantive objection such as hearsay or the original writing rule.
The best way to deal with an objection is to avoid it. Simple precautions include:
- Ask better questions.
- Don’t lead the witness. Use the “W” siblings to start your questions.
- Shorten your questions. Watch the compound questions.
- Ask your questions confidently. Tentativeness often invites objections.
- Seek pretrial admissions (request to admit) to avoid authenticity objections.
- Utilize pretrial stipulations and pretrial authentication of exhibits.
Inevitably, however, no matter how good your pretrial planning is, you will confront objections during your direct examination. Some strategies for effectively dealing with them include some of the following:
First, when responding to any objection, do so confidently and assertively. Avoid the snark and platitudes, “Counsel should know this is not hearsay…” You just come off unprofessional and immature when you respond in that fashion. Don’t do it.
Wait until the court asks for a response before you wade into the argument. The judge may dismiss the objection without any commentary from you. Once invited to give a response, do so concisely and clearly, e.g., “This is not hearsay because it’s a party admission and thus non hearsay.”
If your opponent is fond of speaking objections, and the court permits them, it’s often unclear what the legal basis of the objection is, so it’s also hard to respond. In that instance, it’s permissible to ask the court to direct counsel to advise of the specific rule of evidence violated so you can respond to it. This does two things: it subtly brings to the court’s attention the offensive speaking objection without whining about it, and secondly, it may have a chilling effect on future bloviating.
Sometimes, you will have a foundational objection continuously sustained by the court. Don’t panic! The worst thing to come out of the mouth of a young lawyer in those circumstances is, “Fine, I’ll move on…” Don’t say it! Instead, buck up and respectfully address the court: “Your honor, I believe my foundation is adequate here. Will you please instruct counsel to share with the court where specifically the foundation is lacking?” A good judge, knowing that foundational objections are not designed to be used offensively, will do so. The goal of a foundation is to assure the court that the evidence, whether documentary or testimonial, is fair, reliable, credible, and accurate. It is not designed to be a tripwire to be used to exclude otherwise proper evidence.
These comments are merely flybys but introduce you to many of the concepts used to prepare and perform an effective direct examination. Attend the ABA Family Law Trial Advocacy Institute (July 22nd to 30th this year) for a deeper dive. And consult my books, The Family Law Trial Evidence Handbook and The Divorce Trial Manual: From Initial Interview to Closing Argument (Second Edition) for more information.
Advocacy Tip: Direct Examination 101
Almost all direct examination injuries are self-inflicted. Fortunately, you can avoid them by using better structure, better questions, and better planning.
Development and Introduction of Exhibits
Often, dissolution cases become a “he said, she said” fight, with two diametrically different versions of the same incidents and lifestyles. The introduction of documentary evidence to support your client’s side of the story is very effective and may swing the case to your client’s side.