TWENTY-FIVE WAYS YOU CAN IMPROVE YOUR CHANCERY TRIAL PRACTICE

April 10, 2013 § Leave a comment

Twenty-Five Ways You can Improve Your Chancery Trial Practice, published in the Mississippi Law Journal’s online edition Supra. Click on the .pdf link.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #1

October 4, 2012 § 2 Comments

This is the tenth and last in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these are familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #1 …

Be Professional. Safeguard your reputation with the court.

Being professional is a combination of a lot of traits that include preparation, punctuality, competence, and a professional demeanor. Here is a bulleted list of some things to bear in mind:

  •  Be on time. It is rude in the extreme to keep the court and everyone else waiting while you mosey your way to the court house. Some judges hate it so much that they treat it as contempt. UCCR 1.05 specifically says, “When any civil action has been set for, or adjourned to, a particular hour, all officers, parties , witnesses and solicitors [ed.’s note: solicitor is the old-fashioned term for a practitioner in chancery court] whose presence is necessary for the trial shall be present promptly at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.” Even if you aren’t found in contempt, why start off on the wrong foot with your judge?
  • Avoid histrionics. You are not in chancery to impress a jury with your dramatic skills or oratorical flourishes. Most judges I know find that sort of showboating to be off-putting.
  • Be respectful of the court. Even when the tide is flowing strongly against you, be courteous and respectful to the judge. When you show disrespect, you are acting contrary to your role as officer of the court. UCCR 1.01 states that “The dignity and respect of the court will be preserved at all times.”
  • Be prepared. Have your exhibits ready, your trial notes in order, and your witnesses on hand and briefed. have any statutes or case law in shape to present at the appropriate time.
  • Be courteous to opposing counsel. Sometimes this is easier said than done, I know, but make the effort.
  • Observe all of the requirements of UCCR 1.01.

Safeguard your reputation with the court as if it were a cache of precious gold. Your reputation with the court is in essence how the judge assesses your truthfulness, reliability, candor, competence and integrity. It is a treasure built up over time in your dealings with the court. Some lawyers squander their treasure by making false excuses or misleading statements to the court, by levelling false accusations against opposing counsel, by missing court appearances, by doing sloppy, unprepared work in pleadings, discovery and trial, and by being unprofessional as spelled out above. Don’t misspend your treasure that way.

Keep your promises. If your word is not your bond, you really should consider finding another line of work. When you tell the judge you are going to do something, do it. And if it becomes genuinely impossible, let the judge know right away. Don’t tell opposing counsel a case is settled unless it is, and don’t make promises you can’t keep or have no intention to keep.

Never even suggest anything improper to a judge. I can not think of any more instantaneous way to destroy — probably irreparably — your credibility with a judge than to make even a suggestion of impropriety. A hint of a quid pro quo, an ex parte suggestion for a favorable ruling or criticism of the other party or attorney, and the like are poison for your reputation with the court.   

Your work product speaks volumes about your competence. If your pleadings are sloppily done and make no sense, your arguments are incoherent, and your witnesses make no sense, you have no one to blame but your own sloppy self when the judge turns her nose up at them. Take pride in your work. Make sure it’s right and well-presented. Make a favorable impression on the court. I can assure you that it is a true pleasure to take the bench and try a case that is well-presented by capable lawyers who know what they are doing and have given the court clear pleadings, authority and testimony on point. And I can equally assure you that it is agony to try a case where the lawyers fall considerably short of that mark.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #2

September 13, 2012 § 2 Comments

This is the ninth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #2 …

Understand the theory of your case, and be able to communicate it to the judge.

Most chancery matters are straightforward, and the issues are fairly easily framed. A divorce on the ground of habitual cruel and inhuman treatment, for instance, requires certain elements to be proven, as does equitable distribution or alimony. Modification of child custody has its own framework of proof.

But when you stray into unfamiliar areas, you need to be able to explain to the judge where you are going and why, and what your authority is on which you rely. A few examples:

  • If you are defending on the basis that the court lacks jurisdiction because of the UCCJEA, or because of forum non conveniens, make that clear in your pleadings, and have chapter and statutory verse ready to cite, along with a case or 2 that supports your position.
  • If you are pushing a novel theory of law, can you distinguish the cases against you, and can you cite some persuasive authority to get the judge thinking your way?

Don’t forget that a major component of your job at trial is to persuade: to persuade the judge not only of the legal viability of your client’s position, but also to persuade the judge to rule in your client’s favor. Nowithstanding that, I swear that I have, more often than I’d like, sat on the bench scratching my head trying to figure out exactly what it was that counsel was wanting me to do, not only unpersuaded, but also mystified.

As I said, there are many fairly straightforward issues in chancery trials, but some, like undue influence or lack of capacity, or adverse possession, can be challenging not only for the lawyer, but also for the judge. If you can’t present your proof and your authority in a way that the trial judge can understand, expect to fail.

This Tip may appear so obvious that it’s a waste of your time to read it. But take a minute and think back to a trial or motion hearing where you floundered about helpelessly and ineffectively. Might that have been because you never got clear for yourself exactly what it was you were trying to get across or never found an effective way to communicate it?

In one of my first days of classes in law school, the late professor Harry Case in Contracts called on a student to brief a case. The student stammered and stuttered, his frustration made worse by Case’s prodding, until he blurted out, “Well, I know what I am trying to say, but I just can’t put it into words.” Professor Case glowered at the young man and hissed sarcastically, “Well, you had better learn how to do just that, Mr. _____, because that is exactly what a lawyer is hired to do.”

The corrolary to this Tip is what I call THE GOLDEN RULE OF CHANCERY PRACTICE, which is

 “The easier and clearer you make it for the judge to analyze, the more likely it is that you will succeed.”

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #3

August 9, 2012 § Leave a comment

This is the eighth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #3 …

Use the trial checklists as your template for proof.

Nearly every substantive issue in chancery has a set of “factors” that the judge is required to apply in analyzing the proof and deciding the issues. If you are not putting on proof of each factor that applies in your case, you are wasting your and the court’s time, your client’s money, and your malpractice premiums.

The best way I know of to make sure you address all the applicable factors is to reduce them to a “checklist” that you can tick down as you put on your case, until you have covered them all. It’s a subject I’ve talked about here many times. I call it “trial by checklist.”

If you go to the “search by category” window up there to the right and click on “checklists,” you will find ths posts I’ve made on the subject. Or, you can click this link and get a menu of checklist posts.

How seriously do I take checklists? Well, I have printed them all out and have them in notebooks handy to counsel’s table in my courtroom in Meridian. I have my own notebooks in the bench in every courtroom where I sit.

A few years ago I heard a chancellor tell of a custody modification case he heard where the defendant-mom’s attorney put on not a shred of evidence as to the Albright custody factors. Now, put yourself in that judge’s shoes. The chancellor is charged with being the superior guardian of the child, and with doing whatever is in the child’s best interest. Yet in that case the lawyer failed to put on any evidence of the factors that the judge is required by law to consider and analyze in adjudicating custody. The judge’s decision must be supported by substantial evidence. If you don’t put that evidence in the record, you are putting the judge in a near-impossible position.

Make your own checklist notebook. Let’s say you have a contested divorce involving custody and all of the “big” issues. Just make copies of the Albright factors for custody, Louck factors for claiming the dependency exemption, Ferguson factors for equitable distribution, Armstrong factors for alimony, and McKee factors for attorney’s fees, and have them handy in your file or trial notebook. Then tailor your evidence to flesh them all out, and Voila! you will have proven your case.

As you will see, there are checklists for various issues. Use them and win.

When you prove all the elements of your case, you are not only doing what you were paid to do as a lawyer for your client. You are also making the judge’s job easier, which will always go a long way to improving your track record — with your clients and with the chancellor.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #4

July 19, 2012 § Leave a comment

This is the seventh in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #4 …

Make sure you have enough copies of exhibits to comply with UCCR 3.05.

Read and follow UCCR 3.05. It requires that you have a copy of each exhibit for the court and opposing counsel. And remember that if you take the original exhibit away from the judge to have the witness use it, the judge has no clue what you are asking the witness about. So have an extra copy of the exhibit for the witness.

Some lawyers go an extra step and provide the court with a “mark-up” copy of the financial statements so that the judge can make notes directly on a copy of the exhibit during examination of the witness. That’s a useful idea.

Rule 3.05 is merely a manifestation of the golden rule of chancery court, which is “The easier you make the judge’s job, the more likely it is you will prevail.”

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #5

June 27, 2012 § Leave a comment

This is the sixth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #5 …

Use summaries and compilations.

MRE 1006 allows you to present summaries and compilations of voluminous and complicated evidence. If you simply dump 300 pages of credit card statements on the judge, you likely will not get the same result you would if you instead presented her with a table summarizing those statements and highlighting what you want the judge to consider.

The entire rule reads this way:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Rule 1006 is a great tool to help you accomplish the Golden Rule of Chancery Court, which is “The easier you make it on the chancellor, the better your chance that the judge will rule in your favor.”

Think of it this way: If you dump those 300 pages of accounts in the judge’s lap with little or no guidance, how thorough do you expect the judge to be in his examination and analysis, when he has other hearings and trials to deal with day after day after day? Judges are like everyone else. Faced with unrelenting time pressure they will take shortcuts to get some relief, and that includes even the very best, most thorough judges. I am sure that in the back of the judge’s mind is the thought that if the lawyer could not take the time and effort to elucidate this mass of evidence, why should I? 

You can alleviate that judge’s drudgery by admitting into evidence a chart or summary of the data, showing calculations you used to produce your compilation. Some forms could include month-by-month summaries with yearly totals, time lines with highlighted benchmarks, account calculations, graphs, comparative charts, illustrations, diagrams, and just about any other form of graphic depiction of the evidence that will aid the judge.

The only requirements are: (1) the summary or compilation must be of evidentiary matter that is too voluminous to be examined conveniently in court; (2) the summary or compilation must be based on that evidence; and (3) the originals must have been made reasonably available for inspection and copying, and you should have the originals available in case the judge orders that they be produced in court.

Earlier this year I tried a case in which the attorneys had cooperated to reduce hundreds of bills and accounts to tables and charts with totals and recaps that were easy to decipher and follow. It made a complicated case much simpler to decide, and I was able to get out an opinion in short order with the aid of the Rule 1006 summaries.

Use MRE 1006 to your advantage. It might just be the leg up you need to prevail.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #6

June 14, 2012 § 4 Comments

This is the fifth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #6 …

Spend some time in trial prep making sure your 8.05’s will do their job.

Your UCCR 8.05 financial statement is often the most important document in evidence. If you have left it to the client to complete without any help, or it is slapped together, it won’t be as effective as one that has some thought and preparation behind it.

UCCR 8.05 states: “Unless excused by Order of the Court for good cause shown, each party in a domestic case involving economic issues and/or property division shall provide the opposite party or counsel, if known, the following disclosures …” And it goes on to spell out what the form needs to include.

Here are some ways to make your 8.05’s more effective:

1. Never present a financial statement that you have not gone over in detail with your client. You have seen hundreds, if not thousands, of 8.05’s, but this is probably the first one your client has ever seen. Why would you think that the client will somehow innately know how to complete it, and how to complete it effectively to aid his or her case?

As part of your trial preparation, question the client’s figures, test his or her mastery of the information on it. If your experience tells you that a figure is unreasonably high or low, question it and make the client defend it. If the client can not defend the number, suggest that the client reconsider it.

And while you’re at it, make sure that your client knows what he or she included in every category. Are there duplications? For instance, if your client charges clothing for the children on her MasterCard, did she duplicate the amount paid on the card in the line for clothing? Don’t just take your client’s figures at face value; inquire about them. I once asked a woman on the witness stand how she came up with $480 a month for entertainment, and she explained that was the amount she had spent the month before for flowers for her aunt’s funeral, and that her sisters were going to reimburse her. When I asked what she usually spent on entertainment, she said $50. In one fell swoop, I lopped $430 a month off of her expenses, diminishing her alimony claim against my client. Her attorney had simply taken her word for the $480 expenditure without questioning behind it.

If you really want to do an above-average job, require your client to have one or more bills in hand that support the figures claimed. For instance, two or three MasterCard bills showing expenditures for clothing and what has been spent on the card, and the tithe or donation report from the church, and the Comcast bills for the past 6 months, and the cancelled checks for utilities. That way when counsel opposite tries to attack a line item at trial, your client can confidently say, “Oh, yes, I can back that up.” 

2. Always have the statement typed so that it clearly presents your client’s position. A handwritten statement with scratched-out figures and marks, notations and arithmetic that doesn’t add up will just add confusion and make the judge’s job unpleasantly more difficult. Take the time to type the figures in their proper places and make sure they add up properly. Remember: the easier you make the judge’s job, the more likely it is that you will have a happy outcome.

3. Make sure the tax returns are attached. Copies of the preceding year’s state and federal income tax returns ”in full form as filed” are required. This means that all schedules and w-2’s must be attached. If a document was sent with the original return to the IRS, a copy of it must be included.

4. Have an adequate number of copies. “When offered in a trial or a conference, the party offering the disclosure statement shall provide a copy of the disclosure statement to the Court, the witness and opposing counsel.” This means that, in addition to the original in evidence, you should have three additional copies, plus one for yourself. It does your client absolutely no good for the court not to have a copy to look at while your client is being examined about it. It would even be a good idea to provide an extra copy for the judge to mark up with his or her own notes during testimony.

5. Include a complete employment history. Some lawyers have deleted this from the form in their computers, for some reason, but it is specifically required in the rule: “A general statement of the providing party describing employment history and earnings from the inception of the marriage or from the date of the divorce, whichever is applicable.” This information is vitally important in connection with property division, alimony, child support and even child custody, and yet it is often omitted by lawyers.

6. Be sure to address any discrepancies in your examination of the witness. If your client has a perfectly logical explanation why the cell phone bill is $375 a month, be sure to cover it. If expenses exceed income, how is the client managing to pay the difference? If your client’s year-to-date income includes a one-time bonus that will never be repeated, notate that and have your client testify about it; if you don’t explain it, you can expect that the judge will include the bonus in your client’s income.

7. Use an up-to-date statement. A financial statement prepared six months ago in discovery and not updated since is simply not a statement of ”actual income and expenses and assets and liabilities,” as required in the rule. It defeats the purpose of the rule for a witness to spend a couple of hours explaining how the statement should be updated when that should have been done in trial preparation. If you come to court without an updated statement, the court may continue your trial to require you to prepare one.

8. Have your client sign and date the statement. The Court of Appeals has been critical of unsigned financial statements.

9. It’s better to hit the highlights than to needlessly repeat every item. The best way to lose your judge’s attention completely is to go over every line with your client. Better to touch on the items that are most important to your client or most susceptible to attack on cross.

10. Remember that a month has more than four weeks. A month is 52 weeks divided by 12, or 4.3. A client who says “I get paid $400 every Friday, so I make $1,600 a month” is wrong; the correct amount would be $1,720.

11. Number the pages. It saves the fumbling around as the witness and the court are trying to orient themselves to your questioning. And use the page numbers in questioning the witness: “Ms. Smith, look with me at page 3, line 6.” That’s a lot clearer and easier for a witness to follow than asking “Now you say you spend $200 a month on clothes for yourself; how did you come up with that?”

12. Add or delete categories to meet your needs. Your client spends $65 a month buying yarn and other materials to feed her knitting habit. Why not replace an unused category like “Transportation (other than automobile)” with “Hobby Expenses.” It would be a whole lot clearer than lumping it in with household expenses or something else, and will make it easier for your nervous client to understand while testifying.

13. Don’t list a deduction as “mandatory” when it is not. Deductions required by law, such as taxes and social security are excluded from adjusted gross income for calculation of child support. Voluntary contributions, such as 401(k) deductions, health insurance premiums, and the like are not excluded from income. When you list voluntary deductions as “mandatory,” you are at worst planting false information in the record, and at best confusing the record. Your client does not know the distinction. This is part of practicing law: advising your client how to properly fill out his or her 8.05.

14. Attach a current pay stub. Pay stubs are a marvelous source of information. Quite often clients (and attorneys, I am sad to report) miscalculate income. A current pay stub, preferably with year-to-date (YTD) info is a great tool to check the income figures. Pay stubs also show the true amounts of overtime, bonuses, deductions for insurance and other items, and retirement contributions.

15. Tailor your 8.05 to the case you are trying. In a divorce case, you can have one column of figures showing your client’s current expenses, one showing the household expenses before the separation (to show standard of living), and a third column showing her anticipated expenses following the divorce. In a modification case, add a column on both the income and expense side showing what your client’s income and expenses were at the time of the judgment you are seeking to modify.

You should redact all Social Security numbers. The proper procedure to accomplish this is in UCCR 8.05(B).

Keep in mind the cardinal rule of practice in chancery court: “The easier you make the chancellor’s job, the more likely you will have a favorable result.” When you present an 8.05 that is hastily scribbled out by a client with no guidance, with uncalculated or undecipherable figures, without the proper documentation attached, in sloppy form, you are making the chancellor’s job disagreeably more difficult, and you may not enjoy the outcome.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #7

June 7, 2012 § Leave a comment

This is the fourth in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #7

Put on proof of jurisdiction.

Your pleadings are not proof. It’s your job to establish jurisdiction. Yes, it’s your job, not the judge’s. Yet, I have had to do it on more than one occasion for the attorney. Why would I do that? because it beats the heck out of having to retry the case on remand for lack of jurisdiction the first go-round.

Jurisdiction is vital. Without it the court can not proceed. So …

  • If you are trying a divorce, you have to ask your witness about residence in the state of Mississippi for the requisite time, and you have to establish venue (which is jurisdictional in a divorce), and, of course, that there was a marriage in the first place a marriage.
  • If you are trying a modification, you have to establish that the court has continuing jurisdiction by virtue of a prior judgment; and ditto for a contempt action.
  • If you are trying a contempt, you have to introduce the judgment of which you claim the defendant is in contempt.
  • If you are trying a statutorily-created action, such as grandparent visitation or partition, what are the facts that confer jurisdiction on this particular court?
  • If you are trying a property dispute, where on this green earth is the property located?

The pleadings are not evidence in chancery court. Don’t think just because it’s in the pleadings that it is proven. The pleadings are your template for what must be proven through competent evidence at trial. If you want the trial judge and possibly the appellate court to consider it, you must put it into the record at trial.

I suggest you always put on proof of venue because some statutes, like the divorce statutes, confer jurisdiction through venue. In other words, if a statute designates venue, and you file in the wrong venue, the court has no jurisdiction and you will be wasting time, effort and the judge’s patience.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #8

May 17, 2012 § 1 Comment

This is the third in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #8

Know the law and have it handy.

Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.

Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.

Even if you are convinced that you know what the law is, re-read your cases before going to trial. Sometimes you will spot a fatal distinction or even a point in your favor you had overlooked or forgotten.

Often when you are researching one point in a givn case, you will stumble on something that will help in another case. Stop right then and copy the material you found, or make a note of the case citation, and insert it into the appropriate client file.

If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”

Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.

Don’t ever misquote a case or argue that a case says something that it does not. I have heard lawyers make arguments citing cases that I know for certain do not support their position. Those lawyers may have impressed the client with their apparent erudition, but it likely won’t get past the judge, because most of us tend to read the cases before we cite them.

Read the statutes every now and then, even statutes that you think you’re familiar with. You’ll be amazed at what you find there. If a statute applies in your case, have a copy of it to hand the judge. Most court rooms do not include a code, and if you don’t have your statute(s) handy, you will have to wait until the judge can get back to chambers or, worse, back to her office in a neighboring county, before the judge can decide the point.

Get a copy of Deborah Bell’s book and use it.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #9

May 3, 2012 § 4 Comments

 This is the second in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #9

Make sure your witnesses are prepared.

I am regularly astonished at how unprepared and consequently inept some witnesses are at trial. Some examples:

  • The party who testifies to her 8.05 as if it were a runic stone tablet that fell to earth from the planet Uranus instead of as if it were a document she herself helped to originate.
  • The lawyer who slams his head repeatedly against objections for leading because he can’t come up with any other way to clue his witness in to what he expects the testimony to be.
  • The client who probably presented herself as a roaring lion in the intial interview, and is now a mewing pussycat, much to the obvious chagrin and buffaloment of her attorney.

These and many, many other unpleasant witness experiences can be avoided, or at least ameliorated, through the simple expedient of trial preparation in which the lawyer familiarizes the witnesses with what is headed down the tracks right at them. It’s what your client paid you for.

Prepare your witnesses for trial. Go through their testimony. Test their recollection.

Go over that 8.05 with your client. Remember that although it’s not the first one you’ve ever seen, it probably is the first one your client has. Clients have no concept how important and even crucial the financial form is to their case. Consequently, they are haphazard and careless in prepping them, omitting important items, overstating (often absurdly) some expenses, while drastically understating others. Challenge your client’s memory as to what was included in each category and how the figures were determined. Make her defend her figures. If she can not, suggest she reconsider and adjust as necessary to make it true. Is each and every asset listed, and are the values realistic? Ten tips for more effective financial statements are here. And five more are here.   

Explain for your client what the trial factors are that will apply in your case, and what the important facts are that you need to get into the record. For instance, if you have a child custody modification case, explain material change, plus adverse effect, plus best interest, Albright factors, and how his or her testimony fits into the picture. Go over some expected questions and critique your client’s answers.

Weed out self-destructive language. It’s not ethical to tell a witness what to say, but it’s perfectly ethical to tell the witness how to say what they have to say. In other words, you can’t change the facts, but you can help the witness select a better, truthful way to state those facts.

Encourage your witness never to volunteer or guess. “I don’t know” is a better answer than “Well, you didn’t ask me, but I guess I was at fault, if you think I am.”

Train your witness to paint a word picture of what happened instead of just babbling a bunch of labels. “The windows were all busted out of the house, the wallpaper was ripped down, there was a puddle of blood on the floor as big as a sow pig, and there was a fire burning in the kitchen trash can making a scorched spot on the ceiling,” is a lot more effective than “The house was tore slam up.”

And while you’re at it, teach your witness some points of court room etiquette: don’t speak over the lawyers or judge; speak loudly and clearly; don’t chew gum or chewing tobacco in court; stand when directed by the bailiff. Every judge has his or her own preferences and quirks. Any lawyer who has spent even a short time in my court can tell you, for example, that I can’t abide witnesses and lawyers speaking over each other. That’s a quirk of mine that you should warn your witnesses about. Your judge has similar idiosyncracies. I practiced before a chancellor decades ago who could not stand to see women in short or low-cut dresses. I know it’s so un-twenty-first-century, but if you find yourself in a similar throwback situation, prudence would suggest that you warn your client in advance so that she could adjust her trial-day wardrobe accordingly.

Warn your client not to get argumentative or sarcastic with opposing counsel no matter how big a jerk he acts like he is.

Tell the witness how the proceedings will go and what to expect. Most people headed to court only have tv as a frame of reference for what to expect. Tell them how the case will proceed and who all the people will be in the court room. 

Explain that it’s a lot less damaging to be hurt by the truth than to be caught in a lie.

If you take your client’s money and don’t prepare him or her for trial, you are taking money under false pretenses. And if you think you will slide it by an oblivious  judge, think again. The unprepared witness is usually the second-most embarassingly conspicuous aspect of a trial, right after the unprepared lawyer.

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