Using Cross Examination in New York Divorce Trials

Fair-Hearing-Pic-300x199Although the nature of divorce trials can change from one case to the next, it’s worth noting that divorce attorneys and child custody lawyers like myself often use a very specific set of techniques when presenting our case to the court. Those techniques allow us to create a story for the judge to follow, beginning with an opening statement that explains the nature of the state, then moving onto direct and cross examination. While direct examination is a process used by divorce attorneys to question our own witnesses and establish context within a trial, cross examination is a strategy that’s more focused on changing the perspective of the court to suit our specific client.

During a cross examination, divorce lawyers such as myself ask witnesses essential to our client’s case to provide an in-depth account of the facts that support the case presented by whichever party called the witness to begin with.  Cross examination allows opposing lawyers and perhaps the attorney for the children, if there is a custody dispute, to ask questions of the witness, in an attempt to reveal information that’s beneficial for their clients. For instance, as a cross-examiner in a divorce case, I might use carefully-worded questioning to draw light to points that present my client in a good light. For instance, I could ask the witness to reveal something positive that my client did, or draw more attention to the bad behavior of the opposing party.

Leading a Divorce Case with Cross Examination

While most divorce lawyers will use both direct and cross examination to provide evidence and insight into the circumstances at hand, cross examinations are generally more aggressive in nature than direct examinations. For instance, divorce attorneys have the right to use leading questions in a cross examination. Because cross examination is more about showing the client’s side of the story, than providing the court with a complete picture, attorneys can choose which story they’re trying to tell, and decide which facts they want to draw attention to, and which to leave out.

As a divorce lawyer, it is advisable to position the questions in a cross examination as short, direct statements, designed to prompt specific responses.  The questioning lawyer wants to control the witness on cross-examination.  This is common in many divorce trials. Cross examination can be effective whether or not the attorney is opposed to what the witness has said. For instance, if the testimony of the witness supports my client’s case, I may ask direct questions that draw further focus to the positive attributes of his or her testimony. On the other hand, if a witness’s testimony looks bad for my client, I could use direct examination to try to poke holes in their statements, or to attempt to push the court to question the witness’s authenticity.

Using the Power of Storytelling

Many of the techniques that are most effective for an attorney in a divorce case, are centered around the challenge of telling a story. Both lawyers in a case must try to tell a different story that represents their client’s side, the idea is to make your story as believable, and compelling as possible, so that the judge in your divorce case chooses to award your client with the order or Judgement that he or she wants. By using short, direct statements in a cross examination, I’m able to prompt the witness to tell my client’s version of the story in his or her own words. For instance, I might say: “You visited the couple?” “You saw my client speaking with the neighbor?” “The other party appeared intoxicated?”

Many divorce attorneys and child custody lawyers also use a strategy called “looping” to keep a witness on track during a line of questioning. For instance, if the questions were about the “Smiths”, using the term “The Smiths” multiple times can help to improve concentration: “You visited the Smiths’ house” “You saw the Smiths drinking liquor” and so on. Similarly, transitional questions can help to take a witness from one environment to another in their mind, so that they’re more able to provide a complete picture of the circumstances at hand. For instance, I might say: “Now I’m going to ask you a question about the night of October 20th“.

Cross examinations can be a very powerful tool in a divorce case, as they can help the judge to begin questioning statements that might look negative for a client. Even if a witness chooses not to answer a specific question, the fact that they’re unable to provide an answer can speak volumes by itself. Of course, it’s important to remember that like many aspects of divorce litigation, the cross-examination process can be a complex and emotional time for all the parties involved. Often, it’s the responsibility of a divorce attorney such as myself to try to undermine the credibility of certain witnesses by showing that they could be misinformed or unreliable in their accounts. The key thing for clients to remember, is that the process of cross examination is essential for making a solid case on their behalf.

Cross Examination Paints a More Complete Picture

In the world of family law, where emotions often run high, and personal biases can easily serve to change the information a witness is willing to reveal, it’s important to use cross examination as a way of showing the judge that not all the testimonies revealed during a direct examination will be complete, and reliable. Additional testimony should be considered to paint a more complete picture of each individual case. With cross examination, a divorce lawyer can help the court to make more informed decisions about the needs of each party, in terms of things like maintenance, child custody, child support and the equitable distribution of assets and debts.

With a combination of cross examination, and direct examination, it’s possible to provide the judge with the full truth of the matter at hand, and present the point of view of a client in a more authentic and believable way. To find out more about your upcoming divorce or family law case, or to discuss the details of your circumstances further, contact me, Mr. Darren M. Shapiro at your earliest convenience. I’m available over the phone at (516) 333-6555, or you can use our online form to send a request for your first, free 30-minute consultation.