Few people have any direct experience with courtroom procedures. Fewer have direct experience with giving testimony in formal court proceedings. The bulk of experience most people seem to have regarding courtroom process comes from media outlets in the form of reports or critiques concerning high-profile litigation, television dramas, or movies. And not one of those outlets is an accurate representation of what actually goes on in court.
Usually, witness testimony is a crucial part of a divorce trial. Some may find that statement odd because they may think that witness testimony is always essential to a divorce trial. Not so. Which is the first lesson people learn in actual court proceedings versus TV or movie representations of court proceedings.
There are several factors that go into how many witnesses a lawyer is going to call at trial. It is increasingly common for trial court judges to limit the number of witnesses a litigant may call, as well as limit the length of testimony given at trial. Through the litigation process and pretrial conference or conferences, each side develops its theory of the case and lists its potential witnesses. Where reliable and admissible evidence is available from sources other than live witness testimony, the judge may determine that live witness testimony relating the same information is duplicative and unnecessary.
In addition to any limitations of time or number of witnesses a party may call at trial is the cost factor. Trials are labor intensive and expensive. Each witness who testifies is subject to a direct examination by the party who is offering the witness, cross-examination by the opposing party, a re-direct examination that is limited in scope to the scope of the cross-examination, and a re-cross examination limited in scope to the re-direct examination. Thus, it is important to consider the client’s financial resources in light of the subject matter on which the witness is supposed to testify. In other words, a cost-benefit analysis is in order when determining how many witnesses to call and on which issue. In my experience, clients tend to overestimate who has to be called on any given issue and the initial witness list can be winnowed down without compromising the client’s case.
As mentioned, there are two types of live witness examinations: direct examination and cross-examination. Direct examination and cross-examination each have their own nuances and complexities. Each is very different from the other.
Direct examination is the Q&A conducted between the attorney for the person offering the witness at trial. For example, in a divorce, if the husband is going to testify, the husband is questioned by his own attorney. A direct examination of a witness is one of the hardest things a trial attorney has to do for several reasons, in my opinion.
The first reason that a direct examination is not an easy task is that a lawyer conducting a direct examination cannot typically use leading questions (though there are some exceptions to this rule). So, a direct examination is conducted using open-ended questions—essentially who, where, what, and how. “Why” is a question that brings with it special considerations, but that is a topic beyond the scope of this blog. In short, the witness has to know—in advance—the subject matter with which the Q&A is concerned. It may sound easy. It isn’t. Careful pretrial and pre-testimony preparation is essential to developing a smooth exchange on direct examination. Open-ended questions, by nature of being open-ended, inherently bring the possibility of a witness wandering off and away from the issues that are actually relevant to the case.
To illustrate this point let’s take an example of how people have a dialogue in the world at large—outside the parameters and rules of an adversarial litigation system. If a co-worker asks a person on Monday, “What did you do over the weekend?”, the person asked the question will almost always begin with information completely irrelevant to the call of the question and then will not provide a complete answer. The answer will go something like this: My daughter is in a swimming league. I was, too, when I was her age. I used to love going to the pool at the high school and doing laps. I remember once . . . . . Eventually, if the question as to what activities the person engaged in over the weekend is answered, it will be related only to the activity relating to the person taking the daughter to a swim meet. The myriad other activities that the person engaged in, from getting up in the morning to brushing their teeth before bed—all of which activities are responsive to the open-ended question, as it was phrased—will (thankfully) be left out. And, in normal, everyday conversations this works just fine. But it does not work so well in a court of law.
The second and very common challenge in conducting a direct examination is the witness being nervous. Clients often fumble and mumble in dry runs. They get flummoxed and frustrated. Sometimes they get paralyzed and can’t form a cogent sentence. It happens. Trials are stressful events. A good direct examination should be a smooth and seamless conversation (as seamless as can be when the other attorney is objecting from time to time) between the examiner and the witness. And choreographing that conversation is 95% perspiration and 5% inspiration. The best way I have found to decrease the anxiety of a client/witness is to practice the examination once, twice, or several times. Once the client has gone over the examination a few times in the office, they can focus on that conversation with a familiar face and familiar questions in court. Under stress, the client who has practiced will perform better than the client who has not.
In court, the examiner during a direct examination must work together with the witness beforehand so that the witness knows what is being asked of him or her when the question is open-ended. Moreover, the questions should be open-ended but not without direction or purpose. There is nothing so tedious, disjointed, and confusing in a trial than a bad direct examination that resembles someone trying to herd cats.
Conversely, a cross-examination is typically laden with leading questions. These are easier questions to formulate and easier questions to answer. Leading questions state a proposition. In a divorce case, for example, “It is true, is it not, that you then took the $25,000 proceeds that were in the joint bank account on June 1, 2022, and used them to place a bet on a horse race at the casino last Wednesday?” The answer is that the witness either did bet this money on a horse race or did not. Nevertheless, cross-examinations come with their own set of challenges for the lawyer making the inquiry. One such challenge is asking one too many questions; what I like to call “the bridge too far.” A simple example of this is the attorney who gets an answer he doesn’t expect and doesn’t like, and reflexively asks, “Are you sure?” Whereupon the witness reiterates and emphasizes that same answer that the attorney didn’t expect and didn’t like.
In light of the foregoing, it is fair to say that divorce trials are complicated, stressful affairs, and are much different and more rigorous than what is portrayed in media or on television. Advocating and shepherding clients through a divorce trial takes technical knowledge, excellent instincts, confidence, organization, energy, and skill.
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