the fundamentals of direct-examination

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 sensibleLawyers 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 organizedKnow where you are going and how you

want to get therePresentation should be well organized

Decision making

Educational

School

Tutors

Medical

Mental health

Judge wants to follow your presentationJudge will be taking notesHopefully, 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

MemorandumPut notes and ideas into the “files” as they

developTelephone calls from client with specific stories

Client is more persuasive, the more specific the client can be

Expense v. advantageTry and get a sense early on of whether

you’ve got a real negotiating partnerOther lawyerOther 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

ReviseTell the story to another lawyer or a

friendSharpen 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 answersMake sure notes are usableTriple spaceSeparate sections so you can reorganize

easily

Start broad and get narrowerStructure like newspaper articleInverted pyramid“drill down” into a subjectAnnounce 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 presentationOverbroad questions shift that burden to

the client

Allows you to structure that testimonyOrganizes the presentation for the judgeForces you to think about this specific

subject in advance

Preparing the Witness

Teach the process

Direct

Cross

Re-direct

Re-cross

Form of QuestionsLeading 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 AttireBusiness attireLose the jewels and furs

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

client