Using Direct Examination in Divorce Trials

As a child custody lawyer, divorce attorney, and family law lawyer, I’ve been involved with several different divorcetrials across Long Island and New York. While the specifics of these trials might change from couple to couple, it’s worth noting that the formats and many strategies attorneys typically use to present a case in front of a judge or jury have similarities. One of the most important elements involved in a divorce trial is the process of “direct examination”. This is the method that lawyers like myself use to outline facts and introduce exhibits, through our witnesses for the person we’re representing in any specific divorce case.

In the legal world, the concept of direct examination is used to refer to circumstances within a litigation trial, where the attorney questions his or her own witness to help give greater context and detail to a situation. After one side questions their witness on direct examination then the lawyers for the other parties, such as opposing counsel and sometimes the attorney for the child or children question the cross examination, where both attorneys can ask questions of the witness for the trial. I typically use direct examination as a way of getting to the bottom of the story with a witness, uncovering as much vital information as possible that can be used to support my client.

Direct examination will usually be utilized when trial divorce lawyers call their own client to the witness stand. A lawyer might ask their client why they’re making certain claims, and what facts they believe to be relevant to the case. In other circumstances, thee attorney might attempt to improve the authenticity of an argument by using direct examination to speak to an expert about their opinions in the current situation. For instance, in a divorce trial where a client is claiming that their partner is hiding financial resources, the attorney might attempt to use an accountant or financial auditor as an expert witness.

Direct Examination and Divorce

Often, direct examination in a divorce case is all about structure. From the very beginning, divorce attorneys like myself are thinking about the summation of the case, and how we’re going to tie all the facts together in an examination to highlight a particular outcome. Like many aspects of family law cases, direct examination can involve a degree of storytelling, with a beginning, middle, and end that has been carefully structured to influence the thought patterns of the judge and jury, and allow them to see the circumstances in hand from the client’s perspective. For instance, I might introduce a witness with an insight into their background to set the scene and add credibility to the things they say.

Throughout a direct examination, it’s important to keep questions short, and open-ended. This is because open ended questions allow the witness to reveal a lot more useful information. Importantly, one of the biggest differences between direct examination and cross examination, is the fact that direct examinations won’t involve leading questions. These are the questions that convince the witness to provide a specific answer, such as “He was hiding money, isn’t that right?” Sometime an attorney can use a leading question during direct examination when a witness is providing background information or when the witness has some type of impairment.

With that in mind, it is possible to use certain words to “dig” into the background of an answer to a question. This can push the witness to reveal more relevant information that might be useful on the behalf of the client. For example, if a witness was to say that a person seemed “drunk” when they saw them, a lawyer could ask what they mean by drunk, and whether they can describe the actions that led them to believe that the individual was intoxicated.

Making the Most of Direct Examination

A divorce trial is about introducing the circumstances to the judge, a direct examination is about drawing more context and information into the room, so that people can make more informed decisions about how they should respond to certain requests for things like support, maintenance, equitable distribution and so on. In many New York cases, witness testimonies can go a long way to proving the credibility of a client, and helping to push the decision for certain orders to take place. This is why it’s so important for divorce attorneys like myself to make the most of direct examination, wherever possible.

The more successfully we can build a story, while providing the resources that witnesses need to share as much information as possible, the more likely it is that we’ll be able to convince the judge to see the circumstances from our side. However, it’s important to make sure that you’re not aggressive with a witness during a direct testimony, as this can hamper the process of the case. Attorneys must remain polite whenever possible, and look at their witness when they can, rather than making notes. Sometimes, it’s simpler to take a baby-step approach to revealing information, using provocative words to help a witness answer one important query at a time.  Questions like, “Describe for us, tell us, please explain what you mean, who, what, when, where, and why” are usually good starting words for questions on direct exam.

Preparing for a direct examination can be a complex process, but it’s something that’s particularly important in divorce cases, when witnesses can be the deciding factor that determines whether a client gets the results that they want. If you want to learn more about the details of divorce cases, or you need help understanding how direct examination works, consider browsing through our blog posts. On the other hand, if you’re looking for a professional attorney who can act on your behalf in your divorce case, please reach out to me, Mr. Darren M. Shapiro at your earliest convenience.

You can get in touch to book your initial, free 30-minute consultation either through our online contact form, or by calling us at (516) 333-6555. I look forward to hearing from you.

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