Trial of a divorce case

Preparation begin with the end in mind. Trial preparation should begin even before filing the first pleading in the case. To the extent possible, the issues should be identified in the first several meetings with the client and refined throughout the discovery process. Early on in the representation, the client should be instructed as to the relevancy of certain facts in order to alleviate too much information and minutia. Whether a party has been aggrieved a decade earlier or a parent has had an occasional lapse of judgment is not particularly relevant and should not be the focus of attention. The attorney should assist the client in focusing exclusively on those areas that support or dovetail with that which the court is going to be asked to conclude.

Direct Examination

Testifying effectively is not second nature to most people. Witness credibility depends as much on demeanor as on the content of the testimony. The practitioner should work with the client to develop a comfortable style and pace that is effective. In developing the testimony, important matters should be stressed in detail, while unimportant matters should get minimal focus. The practitioner and the client should determine in advance what the critical portion of the client's testimony is going to be, get to it quickly, and develop it. The client should be taught to elicit sensory images so that the judge can relive the important events through his or her imagination. While it may be helpful to a client to have an outline on subject matters that will be addressed during direct examination, a list of questions and answers should not be provided. The scripted direct examination not only sounds rehearsed, it can become chaotic when objections are lodged and/or the order of the questions changes. The direct examination should be practiced with the client so that the practitioner has prior knowledge of the client's answers on the stand.

Nothing is worse than an unfocused client going off on a tangent. The client should be instructed as to the dynamics of the process. As the examination evolves, the client could be faced with an unexpected question and should not try to anticipate what it is the practitioner is attempting to elicit. The client needs to be instructed that if he or she does not understand the question, he or she should indicate. If a document is being referred to that the client is uncertain of, he or she should request of his or her counsel to review the document in order to refresh his or her recollection. A "scripted" client may find himself lost if the script is not followed verbatim. A prepared client will be able to move through the process with a certain degree of fluidity and cohesiveness so that his or her position is understood.

Cross-Examination

What many practitioners frequently overlook is the demeanor of the client during the adverse and/or cross-examination of the client's spouse. Good judges not only listen to the client's testimony, but also evaluate the client's demeanor during the opposition's testimony. A client who is out of control, frequently scribbling messages, making faces, hand gestures, and the like, may lead to an adverse reaction by the judiciary. A client who is controlled and who is able to respond neutrally is preferred.

With respect to the client's cross-examination, in most instances more information is generally disfavored. To the extent a client can answer a question yes or no; the client should be advised to do so. A client who rambles on to inject his or her thoughts and/or self-serving statements beyond the questions generally affects his or her credibility. To the extent the client is required to make an admission that may not be favorable, it is much easier to make the admission and move forward, leaving the practitioner to deal with possible redirect. Fighting with the opposition normally results in negative consequences. Getting on and off the stand with limited damage as a result of limited testimony is normally favorable. Cross-examination is not the time for the client to feel he or she should destroy the opposition.

CONCLUSION

A well-prepared client is, generally speaking, a client who can be better guided through the dissolution of marriage process. One of the best ways to have a well-prepared client is for the client to actively participate in the process and to understand the uncertainties he or she faces. A well-prepared client is easier to manage throughout the case and will typically be satisfied with the attorney despite the turmoil in the client's life. This satisfaction means future referrals. Everyone wins.

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