Once you have established where you are going and what you need to get there, the next question is how to get there. These trial tips for family lawyers will help you prepare and present your case – from opening statement to closing argument.
By Lynne Z. Gold-Bikin, Family Lawyer
A trial starts when the client walks in the door and the attorney decides to take the case. The first question, of course, is what is the case about? What about the case can be settled? What is the goal of the client? Is the goal rational and achievable?
For example, in a financial case, are experts necessary? Is the issue support? What evidence is needed to prove the various incomes of the parties? Is this a simple W-2 case or are there claims of hidden income, cash, bonuses, corporate withholding or payments by the corporation for personal expenses? Then, perhaps, an accountant would be needed.
It is important at the outset of the case to determine what experts will be needed besides your own client. If a business is involved, it may involve the accountant of the business as well as an outside accountant or forensic accountant to answer the questions set forth above.
If it’s a custody case, is there anything in this case that requires a special evaluation? Is there a mental health issue? Alcohol or drug addiction? Physical abuse? Again, these are things that have to be determined at the outset.
Once you have established where you are going and what you need to get there, the next question is how to get there. What is the theory of your case? Why should you win? Every case has a theory. What is yours? Is your theory that he has made all of the money and he should keep it? Is your theory that he makes it and she spends it? Is your theory that they both worked equally in the business and should equally share the benefits? A theory is crucial.
In custody case, again, what is the theory? Is she a stay-at-home mom? Is she a stay-at-mom who does not stay at home? Does the fact that she is a stay-at-home mom overcome by the fact that he does all of the work with the children including getting them off to school, picking them up at the school bus, doing their homework with them and getting them off to bed? Determine your theory.
Trial Tips for Family Lawyers: How to Prepare and Present Your Case
In order to ensure that the Judge understands your case, you have to present it as if it’s a story. Start at the beginning and move to the end. Unless you have a problem with when expert witnesses have to be called, you should be starting the case the very beginning and working toward the end. The end is where you want to complete it. So, when you do your opening statement, you tell the Judge where you are going. However, the very first thing you should prepare is your closing argument – which is where you want the case to end – then “reverse-engineer” your case until you have your opening statement. Start the beginning with what the case is about and what you intend to prove, then prove it.
The Judge has heard many, many cases. How will they remember yours? A theme is always helpful. If this is a case where assets are to be distributed and your theory is that she does not want him but she wants the money, perhaps the example of a Plotnick Diamond comes to mind as a theme. The Plotnick Diamond has a curse; the curse is Mr. Plotnick. She wants the Plotnick Diamond but she does not want Mr. Plotnick. There are many, many themes. Some of them right out of nursery rhymes. Choose a theme to keep the Judge interested.
Preparing Your Witness for Trial
It is very important to prepare your witnesses. Sometimes you have a witness who talks too much. That is not helpful. The Judge will snooze on the bench. Sometimes you have a witness who does not know how to stop talking. Objection narrative will ring in your courtroom if you do not get them to stop. Sometimes you have a witness who does not really understand what they are talking about. Preparation of a witness is extremely important; you should prepare them not only for direct examination but also for cross-examination as well. What can they expect from the other side? How should they deal with it?
Trial Tips for Family Lawyers: Direct and Cross-Examination
As an attorney, you must know how to ask direct examination questions. Until it becomes second nature, keep a very simple chart on or near your desk to remind you of the following interrogatory words:
- Who?
- What?
- Where?
- When?
- Why?
Every direct examination question can start with one of those five words. If you get an objection to leading, you can learn to rephrase by simply tacking one of these words to the front of your question and making it work.
For example:
“You receive annual bonuses, don’t you?”
“Objection: Leading.”
“Rephrase: What, if any, bonuses do you receive annually?”
Very simple.
Your direct examination of each of your witnesses should attempt to have your theme and your theory involved in your list of questions which, again, go from the beginning and work toward the end. So, too, with your cross-examination. Cross-examination is very tricky. You have an adverse witness on the stand who is not going to help you if they can. Consequently, you do not want to leave him up there too long. There are certain things you want to get out of cross-examination. The goal of cross-examination is not to ask as many questions on cross as were asked on direct: the goal is to pick up the things that you think you can make a difference with and move on. Do not repeat the bad stuff. For example, do not say, “On direct examination, you said that my client stole money.” How is that helpful to your case? Obviously, it is not. Instead, phrase the question in such a way that you can highlight where you believe the money was stolen. Do not give them an opportunity to repeat the things that hurt you and then go on and on about how you are simply wrong in your analysis.
Roger Dodd has a very good way of cross-examining. He starts with the broad and goes the narrow. It’s one issue at a time. If there are too many issues in your question, when they answer, you will not know what they are answering. Consequently, you take it one issue at a time. The broad to the narrow.
Know Your Rules of Evidence
Rules of evidence are critical. You must know your rules – and until you gain enough experience to do without it, keep a rule book in front of you while you are in court. Be prepared for any potential rules of evidence by which you are challenged. The most normal one is “hearsay”. Others include “facts not in evidence” and “leading”. Be prepared.
Trial Tips for Family Lawyers: Your Closing Argument
Your closing argument is where you sum everything up. Who did you call; why did you call them; what did they prove? What evidence did you use? Why did you use it? What did it prove? How did it all come together to prove your case?
Lynne Z. Gold-Bikin passed away in October 2018. An internationally known family law attorney who specialized in every aspect of family law, but particularly excelled in custody and divorce matters, Lynne was an AAML and IAML Fellow and Chair of the Family Law Group for Weber Gallagher. During her extensive career, Lynne published The Divorce Practice Handbook on Divorce Law and received numerous awards, including the Eric Turner Memorial Award from the Family Law Section of the Pennsylvania Bar Association in honor of her exceptional work and teaching others in the field. www.wglaw.com
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