This is part two of a two-part blog inspired/encouraged by a client whose custody case I tried this week. Whereas part-one focused on what the client could do to assist trial preparation during trial, part two will focus on what the client can do to assist during trial.
During trial, one will frequently hear testimony one doesn’t anticipate. If such testimony is unreservedly favorable, one is simply thankful. If such testimony is merely neutral, one can ignore it. All other unanticipated testimony (i.e. lies, inaccuracies, twisted stories) suggests additional testimony that needs to be added to the existing outlines.
Sometimes that additional testimony is follow-up questions (if one is currently questioning the witness) or additions to the witness’ testimony outline (if someone else is questioning the witness). Sometimes the client will want to comment on this testimony. Sometimes other witnesses are well positioned to either bolster or undermine the unanticipated testimony. And sometimes additional exhibits may be used to accomplish this. One should also consider whether additional testimony on already entered exhibits might accomplish some of these goals.
It is very useful for the client to have a computer available the entire time during trial and open to the trial preparation documents already created. The client can assist in the process by taking notes and developing additional lines of questioning for witnesses. It may be easiest for a client to have the outlines open on his or her computer and add to them real time or, at a minimum, create a document with what the unanticipated testimony was and how they can prove otherwise.
Testimony can move very fast and trial is a highly emotional situation. It is easy to forget what was said. If clients can take notes while it is happening they may find they can capture more useful information. If the client is the plaintiff and has already testified, the client should create a file “[client name] reply testimony.” In that file, the client should outline topics he or she wishes to comment on based on the testimony subsequent to his or her initial testimony.
The client should have a separate file of notes, describing what testimony he or she believes needs to be addressed. During breaks in trial the client and attorney can discuss these notes and determine: 1) whether any testimony is necessary; 2) which witness(es) are best positioned to provide this testimony; and 3) whether any evidence corroborates this testimony.
For example, in a custody trial if the opposing party testified that one’s client was insufficiently attending to the child’s medical needs, one would likely want the client to dispute that testimony in reply. However, if medical providers or folks who know the child well will also be testifying, one can add to their outlines to confirm the client’s attentiveness to medical needs. If there are medical records verifying the client’s appropriate attention to medical issues, these can be entered into evidence. However, both the attorney and the client should be continually listening for testimony that needs bolstering or refuting. They should work together during breaks in the trial to develop testimony or exhibits to accomplish this.
The reason a client’s participation is so vital to this process is that the client knows the parties’ and child(ren)’s lives better than any attorney could. The client often knows better than the attorney what testimony requires clarification, bolstering, or refutation, and which information or witnesses might best accomplish this. An attentive client taking good notes greatly assists trial counsel in revising testimony outlines on-the-fly. Such clients enable better testimony to be presented to the family court judge. With better testimony they should expect better results.
With kind permission from the client who suggested I do this blog, her reply testimony outline is below.
