by elliot j. wiener, esq. the fundamentals of direct-examination
TRANSCRIPT
BY ELLIOT J. WIENER, ESQ.
The Fundamentals of Direct-Examination
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
scheduleInstead:“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