Trial preparation a family court client should do before trial (or how to save yourself tens of thousands in fees and get a better result)

Posted Sunday, February 12th, 2023 by Gregory Forman
Filed under Attorney-Client Relations, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

This is part one of a two-part blog inspired/encouraged by a client whose custody case I tried this week.  Throughout the process she found trial preparation frustrating, in part, because my instructions were not as clear as they should have been. The first part of this blog is intended to provide instructions to future clients and to any family law attorney looking to her clients to assist in the trial preparation process. Part two will focus on what the client, and only the client, can do to assist in trial prep during trial.

As part of trial preparation, I expect my client to begin (with me to polish) creating testimony outlines for each witness, especially for the parties.  I have traditionally begun my trial preparation about three months before trial.  However, this recent trial makes me think trial prep should begin as soon as I am retained.

There are three substantial reasons I seek these testimony outlines prior to trial. First, they enable me to understand the strengths and weaknesses of my client’s case.  This understanding is vital to advising my client on goal setting and settlement options.  Second, they enable me to examine witnesses in a manner that flows and provides constant useful information to the judge.  This simply results in a better trial record and a greater likelihood of success. Third, they enable me to not have to put constant (hopefully any) thought into the questions I want to ask and the exhibits I want to introduce.  This enables me to focus on the witness’ answer rather than my next question.  Staying in the flow of a witness examination helps me focus on follow up questions based on responses that are unanticipated but helpful.  At trial I want to focus on the testimony I am hearing and not on my next question.

When asking a client to develop testimony outlines, I start with a basic understanding of the client’s case and goals. Thus, I ask clients to create outlines that address goals and within each goal, highlight the facts and exhibits that would justify the client achieving that goal, and explain why detrimental facts are not as significant as the other side believes.  As an example, if a client seeks child custody (the goal) and one basis of seeking custody is the other parent abuses drugs, there would be a section in my client’s and opposing party’s (and potentially other witnesses’) outlines detailing all the evidence of drug use and how that drug use affected the child.

If my client is more involved in the school and the child is doing well in the school, the teacher’s outline might address my client’s involvement, the child’s thriving, and the other parent’s relative lack of involvement.  In a case where my client is seeking alimony, there would be sections in the outline addressing marital fault (if applicable), the marital history as it regards support or deferment of each spouse’s career goals, and the earning history/capacity of both spouses.

In theory, if the client had limitless resources and the attorney had limitless time, the client and attorney could get together, review and discuss every document, discuss all facts relevant to each issue and each goal in each witnesses’ testimony outline, and develop the first drafts of those outlines together.  In practice, I look to my client to do that initial work.  This blog is intended to enable clients to do that initial draft quicker and better.

  • Draft each witness’ testimony as an actual outline and use Microsoft Word

There are numerous reasons to draft these questions in outline form.  Doing so allows one to group questions by issue/goal, to have subtopics within each issue/goal, to have discrete incidents within each subgroup and discrete questions within each incident. Further, drafting as outlines help one shift groups of questions (or even whole topics) to different parts of the outline.  With a simple list of endless questions, one has to reorganize discrete questions—which is much more time consuming.

I tell my clients to purchase Microsoft Word if they don’t have it.  Most family court forms that clients need to fill out are in Word and I am often passing drafts of such documents back and forth between the client as we each revise the other’s draft.  When clients draft in Word-like products (such as google docs) the file information becomes corrupted and the formatting becomes inconsistent.  This is both frustrating and inefficient. The client who will not pay for Microsoft Word loses money paying me to fix formatting problems.

  • Determine which facts are important on each issue and determine which witness(es) can best testify about that fact

Organizing important facts by topic and then determining which witnesses can best speak to those topics is a vital first step towards developing testimony outlines.  In order to maintain my clients’ credibility with the court, I prefer not to have my clients say anything positive about themselves or negative about the opposing party unless another witness (and preferable not a blood relation) or exhibit will corroborate it.

As an example, if one goal in a custody case is to prove the other parent is habitually intoxicated around the children, the outlines should describe eyewitness accounts of this and include journalistic detail (when, where, how, why).

  • Write answers, not questions

While trial attorneys ask questions, they seek answers.  In the past I’ve asked my clients to draft questions and I obtain outlines that don’t indicate the answers.  This was my lack of clarity, not my clients’ failure to follow directions. However, what I seek from the client is the answers.

For witnesses I call (other than the opposing party) I am required to ask open ended question. I use those witnesses’ outlines to ask open ended questions designed to elicit the listed response.  For the opposing party and witnesses that party calls, I can ask leading questions, and simply ask the witness to confirm the listed fact.

Again, these listed questions should include journalistic detail.  It’s not enough to know that dad was drunk at the pool.  When was dad drunk? Where was the pool? How could one tell dad was drunk and how drunk was he? Were the children there?  Were the children interacting with him in his inebriated state?

  • Review the whole case file to determine what exhibits provide useful information

It is always best to substantiate testimony with exhibits.  Tell and show.  The client should review both sides’ request for production and admission responses, the guardian’s report, the parties’ responses to any guardian questionnaire, depositions, interrogatory answers, and affidavits to glean useful information each witnesses can be questioned about.  I tell clients to incorporate exhibits as line items in the outline with the exhibit file name in bold.  I also tell clients to develop questions that explain and give context to the exhibit.

Even if I received a perfectly drafted set of trial testimony outlines, the client and I would still spend significant time in trial preparation.  It is my job as an attorney to review these lists and exhibits with the client.  As part of that process I question what, at first glance, does not appear to be helpful.  Often it isn’t and I simply remove that part of the outline.  Sometimes it is, but the information needs to be presented differently, or by a different witness, or in a different part of the outline.

For the portions of the outline that clearly provide helpful information, I will review any listed exhibits to confirm they show what the outline contends, and discuss that portion of the outline to see if more information or clarifying information should be added.  I will also remove extraneous information.

However, unless I have very clear memories of some important fact in the case, I will rarely add exhibits or specific factual information (I will often add topic sections or goals that the client did not include in the initial draft).  With many of my cases there are thousands of documents.  Rarely do these documents provide obviously relevant information and it is often only the client who can provide the context that makes a document relevant.

It would take days for me to review each document with the client to determine which are relevant and why.  A client who cannot do this initial work is either going to need to pay substantial additional fees for me to do this work with him or her (for reasons noted above, this is not work I can do without client input) or simply have the case tried with substantial relevant information not presented to the court.

The process of putting first drafts of trial witness outlines is time consuming and involves much thought and effort.  It is not pleasant work.  But it is not work I can do myself and it is much more cost and time efficient for clients to do the initial drafts.  Hopefully this blog provides greater guidance.  Clients who follow this advice will get better results at much lower costs.

With kind permission from the client who suggested I do this blog, her final direct examination outline and the father’s final cross examination outline are below with identifying information altered or removed.   These outlines have been significantly altered from the initial drafts but are designed to show what a final outline might look like. As they are only for my and my client’s use, they aren’t intended to have perfect grammar or consistency.  Note also that the draft for Ms. Smith’s outline contains exhibit numbers rather than exhibit names as the exhibits had already been marked and numbered by that point.

Further note, that there are redirect questions at the bottom of Ms. Smith’s testimony outline. One great advantage of trial testimony outlines for each witness is that one can easily add and move trial testimony in response to prior testimony.   How a client can assist in that process is the subject of part two of this blog.

Finally, that same client shared an outline of her thought process in doing these examination outlines.  We both believe this outline will be useful for future clients as they prepare for trial.

Download (DOCX, 54KB)

Download (DOCX, 34KB)

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