How To Testify at Trial

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By on April 28, 2012 10:32 pm Leave your thoughts
                                            This is not my client; just a generic/Google Images photo.

Here is some advice I gave a client in a hotly contested family law case, for her preparation to testify at trial. The advice is tranferrable to almost any kind of case: with respect to her confidentiality, I have stripped this of almost all particularity to her situation, but I have here permission nevertheless and her suggestion you that if you become my client, the sooner you adapt to the way I organize thigs the better. If you cannot adapt to my methods, you have the wrong lawyer. Variable information, names, etc, and my comments on the advice I gave, are in (   )’s.

1.    (Memo to client)  I figured I would do some summing up in this e-mail.

a.     (Client name) must prepare, prepare, prepare. (Reading pleadings, her lists of concerns, my outline of questions for her, counter-points to her husband’s accusations,  etc. See my explanation in red below.)

b.      That does not mean reviewing two banker boxes of documents (accumulated during case preparation). That is not possible.

c.      I was surprised, with all our talk about being concise and focused, (you/client) sent nearly ½ inch thick pile of documents about a minor issue three days before the trial. Is that really the best use of my time, to charge (client)  $200 to read that stuff? I think not. (At this stage, client and lawyer should have paired down the two bankers boxes to an outline of 20-30 pages.)

d.      On the other hand, if (you/client) want to send me a “list of top 5 or top 10 of key points from the stack of documents ”, I can read one page and incorporate into my outline. (This is the hardest thing for clients to accept, that we must become concise and targeted in our presentation. Very few cases are the “O.J. Trial”. )

e.      If there is a certificate of excellence or other short document to prove her point, we can use that but NOT ½ inch thick.

f.       I am sending to myself all e-mails (you/client) have sent me the last two weeks. I have copied and pasted some of them into my outline. Will finish that. (These e-mails were the client’s final lists of concerns, proposed questions to the other side’s witnesses, etc. These must be incorporated into the lawyer’s litigatoin outline.)

g.      Back to the judge’s saying (some off the wall thing we had not anticipated).

                                                       i.     Make a list of every bad thing that your husband has accused you of. I know, you have! Then just review and if necessary, revise the existing list.

                                                     ii.      We will use your (our key witness) as a rebuttal witness, probably our only rebuttal witness, so dress him up as you did last time, and make sure he is there. (Parties and our witnesses must dress for the best effect on the judge.)

                                                    iii.      Listen carefully to (our opponent’s) questions;  (Sounds obvious, right? Just wait until you are “under the gun” in a grinding cross examination. They key is listen, answer directly, and stop before blabbing on and giving the other side more ammunition.)

                                                    iv.      No agonizingly long pauses, and no flip, angry, or argumentative responses. (Smart people are the worst; they may even relish fencing with pro, but that is perilous.)

                                                     v.      And, very important; you are in a legal knife fight; so, no overly friendly nervous laughter.Remember, this lawyer is out to take your child away, so do not allow your response to appear frivolous or angry. Serious, and to the point, unless a bit of humor, or some tears, leak out. (See vi. below.)

                                                    vi.      No intentional tears, but tears in spite of efforts to hold them back, will not hurt you. Accidental humor ok. (Lawyer Hunter must temper his sometimes misplaced sense of humor.)

                                                  vii.      Answer the question asked, NOT the one you wish she had asked. The judge will sustain an objection, “Not responsive Your Honor!” No one is more imperious than (This particular lawyer.) or indignant. She can make an innocent mistake into a capital offense.

                                                 viii.      After giving your “yes”, “no”, “I don’t know”, or “maybe”, you may explain.

                                                    ix.     Do not hesitate to look up at the Court, sincerely, look into his eyes, and ask, “May I explain Your Honor?”. He will let you. (But do not ask your questioner a question. You may say that you do not understand the question. A request to the lawyer to explain or repeat the question, if not overdone, is OK.)

                                                      x.    Know when to stop. A good lawyer will let you ramble on until you volunteer something you should not have or somehow hang yourself.

                                                    xi.      Simply stop when you are finished answering.

                                                   xii.      What you should read are, the pleadings, petition, answer, amended petition, and each and every one of your lists of concerns.

h.      Remember, I will question you first. That should be the first thing that happens tomorrow. I cannot lead you, so you have to listen and remember what our game plan is.

i.        If you do not understand the question, say so, but it looks bad if you say that very often. My questions are designed, simply, to let you tell your story, firmly, concisely, quietly, with dignity.

j.        We want to let the judge know how (your husband)  (list of bad things the husband did).

k.      We cannot explain away an (not so good thing she did). If your marriage was no longer viable, you should have (done something other than what (client/you) did.

l.        You should have your list of reasons why your son should be under your primary care and supervision (why client should have custody.)

You must be ready to debunk the myths and false representations and accusations being made against you, WITH FACTS!

This post was written by Burton Hunter

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