The Fundamentals of Direct-Examination

The Fundamentals of Direct-Examination By elliot j. wiener, Esq.

Direct Examination in Matrimonial Matters • Trial v. Summary Judgment • Factual dispute • Fact gathering process • Witnesses • Documents • Photos, tapes, etc.

The Judge is the Audience • 300-400 cases • Very experienced as lawyers and often as judges • Especially in Manhattan • Outside NYC • Matrimonial part is entry level position

You and Your Client are Two Different People • Do not take on your client’s emotional reactions to situations • The other party is not your enemy • The other party would be your client if they came to you first • Your relations with your colleagues and the court will outlast your relations with your clients

Don’t sell out • Cordial, prepared, knowledgeable of facts and law • Courts do not want rude lawyers who yell and interrupt • “You’re in the Second Circuit, not divorce court”

Polite and firm does not mean push-over • “Let me see if I can persuade you . . .” • Be sensible • Lawyers and judges are in a very practical profession • “The Life of the law has not been logic. It has been experience.” Oliver Wendell Holmes, Jr.

Be organized • Know where you are going and how you want to get there • Presentation should be well organized • Decision making • Educational • School

Tutors • Medical • Mental health • Judge wants to follow your presentation • Judge will be taking notes • Hopefully, the overall design of your presentation should come through in the judge’s notes

Make the judge’s job easier rather than harder Break down your presentation into sections Announce changes in subject “I’d like to turn to the subject of decision making” “I’d like to turn to the subject of medical decision making”

Organize as if you are going to try every case “File” for direct examination of client & other witnesses “File” for Closing Argument/Post Trial Memorandum Put notes and ideas into the “files” as they develop Telephone calls from client with specific stories

Client is more persuasive, the more specific the client can be Expense v. advantage Try and get a sense early on of whether you’ve got a real negotiating partner Other lawyer Other client

Begin Parenting Plan or Statement of Proposed Disposition Early • Focuses on remedies you seek, e.g., • Sole custody • Medical decision making • 50/50 parenting time

Focuses on reasons for remedies, e.g., • The Mother is prone to alienating behavior • The Father denies the existence of the child’s illness • Makes you alert to evidence that supports remedies

Identify your central themes • Mother’s alienating behavior • Father’s denial of child’s illness • Parents’ ability to get along, their protestations to the contrary notwithstanding • Want to develop testimony that highlights themes

Don’t want to seem overly rehearsed • Same words from attorney and client • Same story each time it’s told, using same words • Triangle Shirtwaist Factory criminal trial

Get client’s input • Client knows the story • Omit needless subjects • The telling detail about the cat that trivializes the process

Sometimes hard to know what is needless Revise Tell the story to another lawyer or a friend Sharpen presentation

Outline / Q&A Trials are more like jazz than classical music Improvisation is imperative Listen to witness

Outline v. Q&A • Distinction not so important if you • Do not read your questions to the witness • Listen to testimony • Remain flexible

Let witness know what subjects you’ll cover Don’t make witness memorize answers Make sure notes are usable Triple space Separate sections so you can reorganize easily

Start broad and get narrower Structure like newspaper article Inverted pyramid “drill down” into a subject Announce your topics

Break the subjects down into small parts, don’t ask overbroad questions Not: What are the problems with the current parenting schedule Instead: “I’d like to turn to the current parenting schedule.” “What are the problems with the mid-week visits?” “What happened with the mid-week visits last week?”

Why? Relieves the client of the burden of remembering every element of the problems with the current parenting schedule Your job is to organize the presentation Overbroad questions shift that burden to the client

Allows you to structure that testimony Organizes the presentation for the judge Forces you to think about this specific subject in advance

Preparing the Witness Teach the process Direct Cross Re-direct Re-cross

Form of Questions Leading v. Non-leading Who, what, where, when Exception: preliminary matters

Lawyer provides the structure • Client tells the story • Client must convince the court, therefore client must speak • Client knows the story, just needs structure w/i which to tell it

Information gathering process • Don’t have client repeat facts that are obvious and already in evidence through documents • Grades on report card • Corroborate client’s testimony with documentary evidence

Formal objection: cumulative • Boring and unnecessary • Client can should explain facts related to documents • Why grades changed from one year to the next

Tapes/Videos • Very dangerous • One Man’s Ceiling is Another Man’s Floor

Client’s Decision Making Process and the Hearsay and Child’s Statement Objections • 2 separate objections • Hearsay Objection • What did the teacher tell you about your child’s performance in school? • Offered for fact not truth • Needed to show decision making process

Child’s Statement Objection • What did your child tell you about the amount of homework he had that night (that you decided not to have him play in his Little League baseball game)? • Offered for fact not the truth • Needed to show decision making process • Does involve parent’s statement of child’s statement

I Don’t Remember v. I Don’t Know • “I don’t remember’ allows refreshing recollection • Can use anything • Caution: other side will review it • “I don’t know” cedes the issue to the other side

Reticent Witness • Best solution in the preparation • Demonstrate how it works

Chatty Witness • Witnesses job is to answer the questions asked • Judge appreciates efficiency • Words are weapons • Interrupt to redirect witness’s attention

Client’s Attire Business attire Lose the jewels and furs

You can’t change your client, you can only prepare your client

The Fundamentals of Direct-Examination