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Trial Is Coming: Avoid Pitfalls and Put Your Best Foot Forward

Hopefully you’re reading this blog at least thirty to sixty days before your Trial is set. Ideally, that is the time to be buckling down to prepare for the Trial or Evidentiary Hearing. The terms are really interchangeable for the purpose of the things outlined herein. If you are closer to the time, you can still use these tips to help with preparing for the Trial.

If you have an attorney, meet with the attorney in advance. Ask the attorney to provide you proposed questions. In my experience, it easies a client’s nerves to know at least some of the questions in advance. There is no way an attorney can prepare all questions in advance because answers may prompt additional questions during the Trial.

If you don’t have an attorney, you should put together an outline for your presentation at Trial. I would suggest you pull the law that is being applied and then input in the facts to support the argument that you are making. Once you have an outline, start putting together questions that assist you in getting the facts stated on the record at Trial. When you question your witness, you ask direct questions. Leading questions are allowed during cross-examination.

Trial questions are very fact specific. You have to know the issues and allegations to be able to adequately prepare. Hopefully, the Judge has Ordered the submission of a Pre-Trial Memorandum which will you in understanding the allegation being made by the Opposing Party and allow you to prepare for those issues. As an example, in a custody case you may consider these questions:

  • What is the name of the child’s teacher?
  • What is routine regarding the child’s homework?
  • What is the name of the child’s doctor?
  • How many medical appointments have you attended?
  • What is the minor child’s typical schedule on school days in your household?
  • What is the minor child’s typical schedule on non-school days in your household?

Besides questions, look at the Exhibits that are proposed for the Trial. If you have an attorney, the attorney will prepare Exhibits. If you represent yourself, you will prepare the Exhibits. It is very important that Exhibits be tabbed with numbers for the Plaintiff and letters for the Defendant. All Exhibits are supposed to be disclosed in advance of Trial and tabbed Exhibit Books produced by the deadline provided by the Court. Looking at the Exhibits helps to identify what the Opposing Part will allege at Trial and it helps to rein in your testimony.

It is very important to listen to the questions asked and answer only those questions. It is very common in Court for a witness to answer a question in a manner that is non-responsive. If it is a yes or no question, answer it that way. The Judges get very frustrated when a witness tries to qualify their answer and does not answer what has been asked.

If an objection is made at Trial, you wait and do not answer until the Judge directs you to answer. An objection is a legal argument asking the Court not to allow the witness to answer the question. It is important whenever an objection is logged to stop and wait. After the objection is made the Judge will rule either “overruled” or “sustained.” Overruled means that you answer the question and sustained means you do not answer the question.

If you are a witness, you do not ask questions. You are on the witness stand to answer questions. Do you ask questions of the Court or the person answering the questions? You will have the opportunity to provide your side and present additional testimony regarding your position in the case.

Do not argue with the Judge, Opposing Counsel or Opposing Party. I was recently in a Trial where the witness made negative statements about the Court and Counsel. It impacts credibility and character which may have an impact on the outcome of your case. Be respectful! Even if you are frustrated, you need to be calm and collected.

Also, I always bring bottled water and extra layers of clothing to Trial. I try to make myself as comfortable as possible. Being comfortable is important, but make sure to dress appropriately for attendance at Trial.