Don’t forget the “why” questions

Posted Tuesday, March 21st, 2023 by Gregory Forman
Filed under Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I’ve recently been preparing for a number of custody trials while also working on a number of appeals I’ve inherited from trial counsel.  These experiences have crystalized my thinking on trial preparation: attorneys undervalue “why” questions.  I am reading a lot of trial transcripts that focus on what happened but not why it happened.  A client’s (or opposing party’s) actions and beliefs are relevant but that relevance is often tempered or strengthened by an understanding of motivation for action or basis for belief.  “Why” questions elicit this testimony.

For example, testimony that “I could not forgive my husband his adultery” could mean that the wife is hardhearted (not helpful) or lost trust in a husband that could not be regained (helpful).  To ask the client before trial why forgiveness was not possible is an essential element of trial preparation.  If the client’s answer demonstrates a sincere attempt to forgive that ultimately did not succeed, asking a series of questions at trial as to how forgiveness was attempted and why it was not achieved will elicit helpful testimony on fault in the marital breakup.

However, if the client’s answer demonstrates mere hardheartedness, one should rethink testimony on marital fault.  Perhaps the adultery was not the cause of the marital breakup but merely the catalysis to end a bad marriage.  In that case, the more honest testimony would acknowledge this.  Adultery would still be a factor in marital fault but not as strong a factor in the reason for the marital breakup. In my experience, objectively weaker but sincere testimony is better than objectively strong but insincere testimony.

Another example is the consideration of an asset that the spouse owned prior to the marriage that the client believes to be marital.  A simple statement, “this is marital property because funds were placed into it during marriage,” provides some support for that proposition.  However, “why” questions potentially strengthen that claim. “Why were funds placed into that account during the marriage?” “Why do you believe that action demonstrates your spouse’s intent to treat this account as marital?”  With such testimony, not only is one’s claim more likely to be accepted but, if the trial judge doesn’t accept it, you have created a much stronger trial record for appeal.

One needs to be cautious about asking the opposing party “why” questions when one doesn’t already know or have evidence of the answer.  There’s an aphorism, “never ask a question on cross examination you don’t know the answer to.” That’s generally good advice—and excellent advice for “why” questions, where giving the opposing party an opportunity to justify or explain negative information can be devastating.   Only where any response to a “why” question will be helpful (or when one knows what the answer will be) should such questions be asked of the opposing party.

A number of potentially winnable issues on appeal don’t succeed because the trial record doesn’t explain the client’s beliefs or behavior.  Moreover, these issues might not have required appeal had the client provided such testimony and thereby created victory at trial instead of defeat.  I have a justified reputation of taking a long time on witness examinations because I seek a lot of testimony eliciting motivation and explanation. “Why” questions take longer to answer than “who,” “what,” “when,” or “where” questions. However, the goal is to maximize my client’s chance of success at trial–and on appeal if I don’t succeed at trial.  A record filled with helpful “why” testimony helps with both.

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