Strategies for More Effective Trial Presentations in Family Law Proceedings

Strategies for More Effective Trial Presentations in Family Law Proceedings

Mitchell Reichman

Mitchell Reichman

November 27, 2018 01:19 AM

On September 21, 2018, the Executive Council of the Family Law Section of the State Bar, past and present Family Law Judges, as well as experienced practitioners, gave 24 participants the opportunity to hone their skills in the Family Law Trial College. The suggestions, thoughts, and ideas that were discussed benefit any Arizona family law attorney, regardless of their years of experience. As moderator of the college, I am sharing some of those insights.

Know Your Judge

In an Arizona family law trial, there is an audience of just one, a judge and no jury. Gather as much information about your judge as possible. At minimum, carefully review the biography of the judge on the Maricopa Superior Court website or the resource available in your county. Google the judge. Gather information from colleagues who have appeared before this judge or who have information about his or her pre-judicial background and experience. Obtain and review FTRs of the judge presiding at a trial where both litigants are represented by lawyers.

Many of the judges have posted their “preferences” for trial related activity on the Maricopa Superior Court website. Use the Resolution Management Conference or Return Hearing as an opportunity to gather more information about the judge relating to trial. For example, some judges will allow leading questions during direct examination because of the time constraints imposed on the lawyers. Know if this judge ascribes to that practice before you begin your trial preparation.

Provide a Clear Roadmap

Your judge is not an encyclopedia of law or knowledge. In fact, in many cases your judge may know very little about family law during his or her first year on the family law bench. Lead the judge to a place they are comfortable going, with the result you are seeking to obtain. Always think “How can I help this judge?” The best opportunity is the Joint Pretrial Statement. File it on time. Do not provide a separate Joint Pretrial Statement unless your separate statement includes the reasons why a Joint Pretrial Statement was not provided. While not the best course, counsel can provide an abbreviated “Joint” Pretrial Statement and attach each of their separate Pretrial Statements.

State clearly and specifically what you want in the Joint Pretrial Statement. Summarize the significance of each witness, and if the witness is not a party, explain the witness’ relationship to the parties. Don’t merely include a list of your exhibits. You will know which exhibits are likely to draw an objection. In the Joint Pretrial Statement, discuss the objection and make a statement as to why the exhibit ought to be admitted.

Educate the judge in the Joint Pretrial Statement by including discussions of the relevant statutes and case law that support your position and the relief you are asking the court to grant to your client.

Exhibits Should Be Easy to Use

Most judges will request a bench book of the exhibits which are either delivered prior to trial or presented on the day of trial. In order for the judge to follow your presentation and adopt your reasoning, it is critical that the judge be able to read and understand your admitted exhibits during trial. At the trial conclusion and before they make their decision, the judge is going to take three things back to their chambers to review - a copy of the Joint Pretrial Statement, the exhibits, and their notes.

They will not admit voluminous exhibits into evidence, even when the Joint Pretrial Statement stipulates to the admission of the exhibits. First, the judge does not have the time to review hundreds of pages of documents and second, they do not want to create a record on appeal that includes information that he or she has not specifically reviewed in making their decision. Pare down the number of exhibits that you need the court to have in order to grant the relief that you are requesting.

When possible, summarize voluminous information. For example, there is rarely the need to have hundreds or thousands of pages of bank and credit card statements admitted into evidence. Summaries can be provided of deposits, withdrawals or specific transactions that you are questioning. Rule 1006 of the Arizona Rules of Evidence provides that if you have made all of the documents used in the preparation of the summary timely available to the opposing party or counsel prior to trial, those supporting documents do not have to be exhibits and do not even have to be in the courtroom during the hearing. Witnesses must be prepared to provide the proper foundation for the introduction of each summary. Neither you nor your staff can be witnesses. You cannot simply tell a judge “We prepared it” as your foundation for the admission of the summary.

Consider how you provide the judge the exhibits in the bench books, particularly when there are multiple exhibit binders. It is difficult for a judge to juggle multiple three-ring binders - each containing hundreds of pages of documents and twenty or more numbered exhibits - while you examine a witness and present exhibits located in multiple binders all relating to that witness. Judges may have small courtrooms and desks. It is difficult and time consuming for them to grab a binder and flip to an exhibit in order to follow along and it costs you time as you wait to talk to your witness until the judge has located the exhibit. A much better practice is to organize bench books by witness with relevant exhibits in one binder and organized in the same order that you will address them during the witness’ testimony.

Use visual aids when they will help the judge understand the information. This can be as simple as writing something on the easel found in most courtrooms or having presentation boards of important provisions of an agreement, a bank statement, a letter, or other documents enlarged and highlighted. If there is technology in the courtroom use it! If not, bring your own. During the Trial College, one judge explained that a lawyer presented him with an USB drive as an exhibit, stating that certain documents and/or exhibits were all on it. The judge refused to admit the USB drive. However, if the lawyer had brought a projector (or monitor) and a device to the courtroom and flipped through the most important documents contained on the USB drive, the judge would have allowed it to be admitted.

Be In Control

The most effective trial lawyers are in control of themselves and of the courtroom during a trial. Always stand when you address the court or are examining a witness during a trial, including when you make an objection. Stand at the podium when examining a witness or making an opening or closing statement. Take command of the courtroom; standing is part of that. Avoid being hijacked by the anxiety and anger your client may have for the opposing party. Set your client’s expectations of what to expect in the courtroom. Explain that if you are the conduit to express their anger, you become a less effective advocate and the judge is less likely to be receptive to their positions. Keep control of yourself and avoid hostility with the other lawyer in court and treat each witness courteously and respectfully. Do not make speaking objections. Avoid confrontations with the witness when cross-examining them. It is far better to say to the evasive witness “Mr. Jones, I have a very limited amount of time in which to present our case, and therefore it is important that you answer all of my questions directly and not offer your own thoughts that are non-responsive. I am going to re-ask that question and ask that you answer it directly and provide a yes or no answer.” This is a more effective approach.

Be a Storyteller

In a trial, you are presenting your client’s story. In direct examination, it is the client who is the storyteller, not you. Do not ask the client leading questions, but give the client the opportunity to tell his or her own story. Make it a conversation, with your client the star of that conversation. Preparation is critical. Practice direct examination with your client so they are comfortable telling their story. For example, “You have asked the judge to award you spousal maintenance; can you explain why you feel you are entitled to it?” After the answer, follow it up: “Did you contribute to your spouse’s earning ability? Can you explain what you did that enhanced their earning ability?” This is not a conversation that your client is having with you; it should be a conversation your client is having with the judge. Coach your client to turn and face the judge and look at him or her directly when testifying on direct examination.

You are a storyteller during cross-examination and you are telling the story. On cross-examination almost every question, if not all of your questions, should be leading questions. By using leading questions, you are actually testifying and when artfully done, the witness will affirm everything that you say. With an evasive witness who offers testimony not directed at your question, the best way to control that witness is to object if the answer is “non-responsive” or “unresponsive.” This is an objection that only a questioner is allowed to make.

Make It Easy to Follow

Make a brief opening statement to let the judge know what they can expect to hear and the most important parts of your presentation so they ready for and focused on those aspects of the case. In direct examination, and even on cross-examination, introduce the topics that you are asking questions about and make specific citations to statutes, where appropriate, so that the judge knows exactly where the information you are presenting fits in. For example, ARS §25-403 factors and §25-319 factors are all in the templates your judge is going to use to draft the ruling. When you tell the judge during the presentation of evidence that this evidence relates to a specific factor, the judge knows exactly where in the ruling the information fits; you have made it easy for them to walk down the path that you have presented.

These are a few of the helpful ideas offered at the Family Law Trial College. When members of the family law bar make better court presentations and practice at a higher level, everyone benefits - especially our clients. Let’s raise the bar in a meaningful way.

Previously published in Arizona Attorney at Law Magazine – Vol 10. No.7

Related Articles

Is Family Law Mediation the Future of Conflict Resolution?

by Best Lawyers

In recent years, family law mediation has started to emerge as the preferred option over traditional forms of litigation, offering clients an amicable and efficient alternative of conflict resolution.

Silhouettes of family split into multiple sections


Protecting Your Personal Injury Settlement: The Importance of Consulting With a Family Lawyer

by Forum Law and Yegendorf Rashid Injury Lawyers

Victims of personal injury in Ontario may not realize that their case settlements and financial winnings could be at risk in the event of a divorce. A family law lawyer can help.

Teddy bear with bandages laying down with orange background

The Top 7 Things to Know Before Filing for Divorce

by Best Lawyers

Consulting with a qualified divorce attorney can help you understand your rights and obligations when filing for divorce. Here are 7 things you should know.

Two golden wedding bands with a crack down the middle

It’s All Relative

by Paula Birch Billingsley

Relative adoption can be infant adoption too; it happened to us and was quick, easy and inexpensive.

Private Adoption of A Relative’s Child

Announcing the 2022 Best Lawyers: Family Law Publication

by Best Lawyers

Featuring the top legal talent in Family Law and Trusts & Estates.

Announcing Best Lawyers Family Law 2022

Crossing the Line

by Joseph Trotti

Divorce can be difficult, complicated and emotionally exhausting. Divorcing across state lines ups the jurisdictional complexity significantly.

Jurisdiction and Divorce Across State Lines

Trouble at Home

by Brittney M. Miller and James J. Vedder

Decisions about custody and parenting time after a separation or divorce are never simple. Family violence of any kind makes the process all the more complex—and the victim isn’t always the beneficiary.

How Domestic Violence Complicates Custody

Inoculation Disputation

by Justin Smulison

Vaccine uptake has become one of the most contentious issues in American life. Divorced parents who disagree about it are creating a welter of new custody cases in family court—and precedent is scarce.

Divorced Parents Disagree on Child Vaccine

A Balancing Act

by Joseph Milizio

New York State recently passed a landmark law that expands LGBTQ couples’ ability to start a family while protecting surrogates’ rights.

Surrogacy Rights for LGBTQ Couples

Fostering Acceptance

by Cassandra Biron

Those looking to be a foster or adoptive parent for LGBTQ youth must understand which kinds of support are most beneficial to parent and child alike. Happily, resources are now more widely available than ever.  

Resources for Fostering LGBTQ Youth

The 2021 Best Lawyers in Family Law

by Best Lawyers

Featuring the top lawyers practicing in Family Law and Trusts & Estates.

The 2021 Best Lawyers in Family Law

Jeanne T. Tate - Tampa 2021 Lawyer of the Year

by Best Lawyers

Family Law Tampa, Florida

Jeanne T. Tate

WATCH: Best Lawyers Discusses COVID-19 & Family Law

by Best Lawyers

Three legal experts join the CEO of Best Lawyers to talk about problems that arise for family law during COVID-19.

COVID-19 Panel: Family Law

Anne W. White, Collaborative Law: Family Law, Washington, D.C.

by Best Lawyers

Washington D.C's, 2020 "Lawyer of the Year" Collaborative Law: Family Law

Anne W. White Washington, D.C. LOTY

Split Decisions

by Lindsey Kujawa and Susan A. Hansen

Marriage is changing—and so is divorce. Family lawyers must be there for richer and for poorer, in sickness and in health.

Divorce is Changing Family Law

Lesleigh Wiggs Monahan on What Makes a Good Family Lawyer

by Best Lawyers

Lesleigh Wiggs Monahan of Polidori Franklin Monahan & Beattie discusses her 2019 "Lawyer of the Year" award.

Lesleigh Wiggs Monahan LOTY Interview

Trending Articles

Best Lawyers: Ones to Watch in America for 2023

by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in New Zealand™ 2024 Awards

by Best Lawyers

The Best Lawyers in New Zealand 2024 awards include an elite field of top lawyers and law firms.

Auckland, New Zealand Skyline at twilight

Presenting The Best Lawyers in Singapore™ 2024

by Best Lawyers

Best Lawyers offers the most prestigious awards for lawyers and law firms in Singapore for 2024.

Singapore skyline at night

Announcing the 2023 The Best Lawyers in America Honorees

by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

The Best Lawyers in Australia™ 2024 Launch

by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Announcing The Best Lawyers in Japan™ 2024

by Best Lawyers

We are proud to present the 2024 edition of Best Lawyers awards for Japan which include the top lawyers and law firms in the country.

Mt. Fuji in the background with fall leaves and structure in front


Paulson & Nace, PLLC: A Pioneer in Personal Injury Law

by Best Lawyers

Since its inception more than 40 years ago, Paulson & Nace, PLLC, a Washington D.C., Maryland and West Virginia-based personal injury firm, has always led with compassion first. Here are some key insights from the firm on how to go about filing a personal injury claim.

Group of lawyers meet around a conference table

The Best Lawyers in South Africa™ 2023

by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag


Salvi & Maher, LLP: Illinois and Wisconsin's Personal Injury Firm

by Justin Smulison

For more than 35 years, Salvi & Maher LLP has defended their clients throughout Illinois and Wisconsin in various areas of personal injury law, including medical malpractice, motor vehicle accidents, premises liability and trucking litigation.

Skyline of Chicago with green river and blue background


Athea Trial Lawyers

by Justin Smulison

Athea Trial Lawyers is a nationally recognized firm who has received record-breaking victories throughout the country on behalf of personal injury victims.

women with shades of blue in mass arrangement

Announcing The Best Lawyers in Germany™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Germany.

Black, red and yellow stripes

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

What the Courts Say About Recording in the Classroom

by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Could Reign Supreme End with the Queen?

by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye


Mastering the Art of Trial Practice

by John Fields

With its billion-dollar track record, Morelli Law Firm has earned a reputation as one of the country's most successful trial firms.

Morelli and team at table in office with windows