Preparation begin with the end in mind. Trial preparation should begin even
before filing the first pleading in the case. To the extent possible,
the issues should be identified in the first several meetings with the
client and refined throughout the discovery process. Early on in the
representation, the client should be instructed as to the relevancy of
certain facts in order to alleviate too much information and minutia.
Whether a party has been aggrieved a decade earlier or a parent has had
an occasional lapse of judgment is not particularly relevant and
should not be the focus of attention. The attorney should assist the
client in focusing exclusively on those areas that support or dovetail
with that which the court is going to be asked to conclude.
Testifying effectively is not second nature to most people. Witness
credibility depends as much on demeanor as on the content of the
testimony. The practitioner should work with the client to develop a
comfortable style and pace that is effective. In developing the
testimony, important matters should be stressed in detail, while
unimportant matters should get minimal focus. The practitioner and the
client should determine in advance what the critical portion of the
client’s testimony is going to be, get to it quickly, and develop it.
The client should be taught to elicit sensory images so that the judge
can relive the important events through his or her imagination.
While it may be helpful to a client to have an outline on subject
matters that will be addressed during direct examination, a list of
questions and answers should not be provided. The scripted direct
examination not only sounds rehearsed, it can become chaotic when
objections are lodged and/or the order of the questions changes. The
direct examination should be practiced with the client so that the
practitioner has prior knowledge of the client’s answers on the stand.
Nothing is worse than an unfocused client going off on a tangent.
The client should be instructed as to the dynamics of the process.
As the examination evolves, the client could be faced with an
unexpected question and should not try to anticipate what it is the
practitioner is attempting to elicit. The client needs to be instructed
that if he or she does not understand the question, he or she should
indicate. If a document is being referred to that the client is
uncertain of, he or she should request of his or her counsel to review
the document in order to refresh his or her recollection. A “scripted”
client may find himself lost if the script is not followed verbatim. A
prepared client will be able to move through the process with a certain
degree of fluidity and cohesiveness so that his or her position is
What many practitioners frequently overlook is the demeanor of the
client during the adverse and/or cross-examination of the client’s
spouse. Good judges not only listen to the client’s testimony, but
also evaluate the client’s demeanor during the opposition’s testimony.
A client who is out of control, frequently scribbling messages, making
faces, hand gestures, and the like, may lead to an adverse reaction by
the judiciary. A client who is controlled and who is able to respond
neutrally is preferred.
With respect to the client’s cross-examination, in most instances
more information is generally disfavored. To the extent a client can
answer a question yes or no; the client should be advised to do so. A
client who rambles on to inject his or her thoughts and/or self-serving
statements beyond the questions generally affects his or her
credibility. To the extent the client is required to make an admission
that may not be favorable, it is much easier to make the admission and
move forward, leaving the practitioner to deal with possible
redirect. Fighting with the opposition normally results in negative
consequences. Getting on and off the stand with limited damage as a
result of limited testimony is normally favorable. Cross-examination is
not the time for the client to feel he or she should destroy the
A well-prepared client is, generally speaking, a client who can be
better guided through the dissolution of marriage process. One of the
best ways to have a well-prepared client is for the client to actively
participate in the process and to understand the uncertainties he or
she faces. A well-prepared client is easier to manage throughout the
case and will typically be satisfied with the attorney despite the
turmoil in the client’s life. This satisfaction means future
referrals. Everyone wins.