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Episode 123 - What Happens at a Final Divorce Trial

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Walking into a Courtroom is intimidating for someone that has never been there before. Not knowing what to expect at trial is enough to keep most people up at night. In this show, Leh and Todd pull back the curtains a bit to explain what happens at a final trial. In particular, they break down the mechanics of a final hearing in a divorce action. Much of what they discuss will also apply to other family law type cases, such as modification and legitimation actions. Leh and Todd will walk you through the timeline of events you can expect. They also explain what certain terms mean as they dissect the anatomy of a trial. In particular, you will learn about Opening Statements, Direct Examinations, Cross Examinations, and Closing Arguments

Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether & Tharp Show. Here you'll learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time even tips on how to take your marriage to the next level. If you'd like to read more about us, you can always check us out online, And, if you want to listen to old shows of ours, or previous shows, or even read the transcripts of our past recordings, you can check us out at

Todd Orston: I'm excited.

Leh Meriwether: Yes.

Todd Orston: I said it before you. I'm very excited about today's show.

Leh Meriwether: You've been wanting to do this show for a while.

Todd Orston: I have.

Leh Meriwether: And we've never done a show about this.

Todd Orston: I know.

Leh Meriwether: So in case you're wondering, we're going to do a show on ...

Todd Orston: The anatomy of a trial. What does it mean? In other words, you have to go to a hearing, but let's even just focus on a final trial. What are the different components of a trial?

Leh Meriwether: Mm-hmm (affirmative).

Todd Orston: And really you can break that into, and we're going to go into more detail, things that you've heard of, you've seen it on TV, the opening statement, the closing argument. In the middle you're going to have direct examinations, and cross examinations. And so anybody who is either going into a final trial, or a hearing because they're going to be structured similarly, is going to want to listen because we're going to go into a lot of detail, we're going to give tips, and tricks, and things that you should think about. Whether you're handling this on your own, or with the assistance of an attorney.

Leh Meriwether: Right, and so we're going to be focusing on family law type cases, divorce, legitimation, modifications, that kind of case. But most trials, regardless of the subject area, follow a very similar path and it's pretty similar in most states, obviously we're from Georgia, we're focusing on Georgia, so if you're in a different state listen to it, take this information, but obviously talk to an attorney in your state and make sure that these line up with what your trial's going to be about, because maybe some things have been limited.

Leh Meriwether: But at a 50,000 foot view, a trial is broken up into basically five segments, so it's the opening statement. We'll explain what each of these means. The presentation of the evidence by the petitioner, or the plaintiff, depending on what they're called in that state.

Todd Orston: That's who filed the action, who brought the action initially.

Leh Meriwether: And then a presentation of the evidence by the respondent, or the defendant. And then closing argument. Now sometimes, the petitioner or plaintiff can present rebuttal evidence. That would happen between the evidence presented by the respondent or defendant, and then the closing argument, so that's the fourth component. And then the fifth component is really a ruling from the court. So the court will issue its ruling.

Leh Meriwether: Now, the reason I kept it to those five is because most family law cases are held be ... I mean, heard by a judge.

Todd Orston: Rather than a jury.

Leh Meriwether: Rather than a jury. There is two exceptions to that. Georgia being one of them-

Todd Orston: Yay. There's some sarcasm in that yay.

Leh Meriwether: Yeah. And Texas is the other. Oddly enough I didn't realize that Texas ... to this show I actually did some research and realized that Texas and Georgia are the only ones, I thought it was only Georgia, but I was wrong on that.

Leh Meriwether: And when you add in a jury trial, which is a rare exception in family law, you would start the ... you would have a fifth, I mean a sixth component and that would be selecting the jury.

Todd Orston: Voir dire.

Leh Meriwether: Voir dire. And you get to ask the jurors questions, open ended questions, and like in most trials here in Georgia at least, there's typically been 24 jurors put on a panel. Each side gets six automatic strikes to narrow it down to 12 jurors. Now you can ask for specific strikes based on certain prejudices. I've never had to do that before, thankfully. And jury trials are so rare in family law anyways, we really haven't done that many either.

Todd Orston: Yeah, most of my jury trial work was when I was prosecutor. And of course in criminal law, you really don't have bench trials. I mean, there are some exceptions, but for the most part if someone's life and liberty is at stake, then they're usually looking for a jury of their peers to hear the case and make those decisions.

Leh Meriwether: Yeah.

Todd Orston: But I had a few as a prosecutor, situations where the judge ... both parties agreed, meaning the state and the defendant agreed for a judge to make a determination and be the trier of fact. But usually it's a jury.

Leh Meriwether: And so we're going to be focusing mainly on bench trials, because that's what we see most often. We will throw in the occasional exception to the rule, because there are exceptions that can change the dynamic of how a trial's going forward. We'll throw a few in there, but we're going to talk about what you see 80, 90% of the time.

Leh Meriwether: Now, apart from ... so we broke down the components as far as the timeline of what happens, but from an individual person, so whether you're the plaintiff or the defendant, what you're going to be presenting in court will be the opening statement, direct examination, which is questioning of the witnesses that you're presenting for your side of the case, cross examination, where you're questioning the witnesses for the other side of the case, or your opponent, closing argument, and then that's usually the lawyer's job to write, a lot of times the judge will make an oral ruling from the bench, and the lawyers have to write down that ruling and type it up for the judge. So that often happens after the trial, but it's still a component.

Leh Meriwether: All right. Now, you ready?

Todd Orston: Oh, I was ready when we started. Yes, I'm still ready.

Leh Meriwether: Okay good, I was just making sure. You were kind of-

Todd Orston: So where do you want to start? You want to start with the ... like we were talking about, I mean, the first component of a trial is the opening statement.

Leh Meriwether: Right.

Todd Orston: And before we jump into that, let me say a couple things. More so in jury trials than in bench trials, the way I think of a trial, as a trial attorney, is there is a component to theater in it. Okay? And a good trial attorney is going to be thinking about diction, about what they're saying, how they're saying it, where they're standing in court, there are a number of factors that really make for a good trial attorney. But if you're handling something on your own, you're not thinking so much about the theater, you really want to just focus on the mechanics.

Leh Meriwether: Right.

Todd Orston: You want to think about, okay, in each of these components what am I looking to accomplish, and how can I efficiently and successfully accomplish it?

Leh Meriwether: In particular, how do I get the evidence I need into evidence in front of the judge so the judge can consider it when making their ruling.

Todd Orston: Yeah, that's right. I mean, you could be the best showman in the world, and command that space, and walk in front of that judge and be able to just literally put on a great show, but if your questions are meaningless, if you're not getting the information out of your own client, or your own witness, and not successfully cross examining the other party or witness, then you haven't proven anything.

Leh Meriwether: Right.

Todd Orston: And the judge may at the end say, "Your presentation was beautiful. And I'm ruling against you because you proved nothing."

Leh Meriwether: I've almost heard judges say that before, too.

Todd Orston: Yeah, so yes, think about how you're speaking, and how you're presenting, but if you're handling this on your own, don't be so concerned about that.

Leh Meriwether: Yeah.

Todd Orston: Really what you want to be listening to here is the, again, what content and how are you mechanically, how are you presenting in each of these components?

Todd Orston: So let's start with an opening statement. All right. From my point of view, an opening statement is incredibly important. Now, in some hearings, and even in some trials, if a judge says, "All right, I'm giving you for this trial 45 minutes-"

Leh Meriwether: Before you get into the opening statement I think it's ... there was one more thing I wanted to follow up on what you said-

Todd Orston: Sure.

Leh Meriwether: That I just remembered. The theater is more important for the jury than-

Todd Orston: Absolutely.

Leh Meriwether: It is for the judge.

Todd Orston: That's a great point.

Leh Meriwether: These judges, especially judges that in some of the jurisdictions they're family law divisions, all they hear is family law cases each and every day, a lot of times those judges, they just want you to get to the facts. What's the evidence and what are you arguing with that evidence? They don't care about the theater.

Todd Orston: Yeah, they may be amused by it.

Leh Meriwether: Right.

Todd Orston: Meaning they can appreciate a good presentation versus a bad presentation.

Leh Meriwether: Right.

Todd Orston: But they have a built in filter, because they know what they're looking for in terms of evidence.

Leh Meriwether: Yep.

Todd Orston: So if someone is flamboyant and commanding, has a commanding presence, and asks all the wrong questions, they've been listening for those questions-

Leh Meriwether: Yeah.

Todd Orston: And for that evidence, and if it's not there, then the ruling is probably not going to go in your favor. As opposed to the opposite where a jury, that's not what they do, and so sometimes I've seen very good litigators who had very weak cases win simply because their delivery was incredible.

Leh Meriwether: Right.

Todd Orston: And they won that jury over.

Leh Meriwether: It was very compelling.

Todd Orston: It was.

Leh Meriwether: And so that's something to remember. Maybe you've got an attorney and they just seem to be, "Wow, the other lawyer was so much more exciting than my own lawyer." Hey, when you're in front of a judge, don't worry about it. The key question is, are you getting the evidence in that you need to get in?

Todd Orston: That's right. I mean, don't get flustered if you are handling this on your own, or even if you have an attorney, if the other party's attorney is just more flamboyant, their delivery may ... you're listening and you're like, "Wow, that's really polished, that's great," don't just suddenly get disheartened and feel like, "Oh my god, I'm going to lose," because again, it's going to come down to the content.

Leh Meriwether: Right. All right, up next we're going to break down what do you need to have in your opening statement, what you can't put in your opening statement, and then we're going to get into direct examination. And we're going to talk about why that arguably is the most important part of your trial.

Leh Meriwether: Welcome everyone, I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether & Tharp Show. If you want to read more about us, you can always check us out online, If you want to listen to past shows, you can actually check them out at

Leh Meriwether: All right, so today we're actually breaking down the mechanics of a final trial in family law. Most of them are divorce cases that you have final trials in, but sometimes there's other types of cases. But we're going through the mechanics of what it looks like so that if you've got a trial coming around the corner, you know what to expect.

Todd Orston: Yeah, and there's a lot of anxiety.

Leh Meriwether: Yeah.

Todd Orston: People will call and it's clients of ours, or people who haven't yet retained, and they're like, "I don't have an attorney, and I have court next week, and I'm scared. I don't know what to expect." And so the purpose of this show is to demystify that process, because at the end of the day you're in a room and you are just in an organized fashion presenting your case.

Leh Meriwether: Mm-hmm (affirmative).

Todd Orston: And that's it, and you don't have a thousand people watching. You're in front of a judge, the judge has done this a million times, and understands, especially if you're doing it on your own, you're not an expert.

Leh Meriwether: Right.

Todd Orston: So you don't have to go in there and feel like you have to be Clarence Darrow or god's gift to litigation to present your case.

Leh Meriwether: Perry Mason.

Todd Orston: Perry Mason, there you go. So as long as you go in and you're organized, and you understand what you're trying to accomplish, then you should fair well in front of the judge when you're handling the case on your own.

Leh Meriwether: Exactly, so the first part is opening statement. And again, we're not going into at all jury trials, we're staying focused on bench trials, those are trials in front of a judge, because that's what you see the majority of the time. And the opening statement is merely a statement of what you believe the facts will show. And just by the title it is a statement, it is not argumentation. That's what closing argument is for, so you can't say, "Well, I believe that the," if you're the defendant, "I believe the plaintiff's argument or position is flawed because X, Y, and Z," that's argument and you can't say that. You've got to say, "Your Honor, thank you so much for hearing our case today. We believe that the evidence will show that the husband makes X number of dollars, the wife makes Y number of dollars," and you lay out the facts depending on what is contested. So sometimes if there's been stipulations you can let the court know.

Leh Meriwether: The opening statement's like a roadmap as well. It's so you're like, "Judge, we've actually settled the issue of alimony, and we have a proposed consent order on that issue. And what we will need the court to decide today is what should the child support amount be, and what would the parenting times look like. And we've already decided that the mom would be the primary physical custodian of the children, the question is the father wants an extended visitation time, and would like a deviation on his child support for that request." So you lay out to what the judge ... so the judge knows this is what I need to be looking out for during the course of the case.

Todd Orston: Yeah, and building on the stipulation part, because I want listeners to understand that a stipulation is basically a pretrial agreement on an issue. So in other words ... or an issue could be the use of a certain type of evidence, or it could be a stipulation as to a part of the agreement that will become the final divorce agreement. So in other words, it could be there's a document and there could've been, let's say, some hearsay objections to it, but both parties are like, "We're going to waive any of those objections and we both agree we can use this document and that's it."

Todd Orston: And so you've stipulated to that, and waived any objections. Or it could be that, "We've agreed on the issue of custody, we are stipulating to the fact that the mom or the dad is going to be the primary physical custodian. But we still have to deal with legal custody issues, decision making authority, and what the actual schedule's going to look like." So you can stipulate.

Todd Orston: And let me say this, judges love when you do that. If you make an effort ahead of time to try and at least narrow the issues, courts appreciate that. And a lot of times people who are handling in on their own, they don't even realize that that's a possibility. They're like, "I'm going to go to court, I'm going to go to trial, everything's up for grabs, and I'm just going to present it to the judge." Okay, that's your right, but there's an option. If you know, if both of you are like, "Okay, you can be the primary physical custodian, but I want week on and week off." And you're like, "Well no, I'm not going to do week on week off, I want something less than that." Fine, hey, can we stipulate to I'll be the primary and we'll just throw up to the court that we need a parenting schedule. And the court, again, will appreciate that.

Leh Meriwether: Yep. And all right, so another thing that can be stipulated to is an exhibit, like a marital balance sheet. So the parties can all agree, "Here are the assets and our agreed upon value for those assets, and judge, we just couldn't agree on how they would be divided, so we need your help there."

Todd Orston: Right.

Leh Meriwether: So that's just another example of how you can help facilitate things so you're not arguing about values during the course of the trial, which eats up precious time.

Todd Orston: I have seen what would've been four or five day trials get limited to a half day or day simply because we were able to stipulate to so many things.

Leh Meriwether: Right.

Todd Orston: And again, the court will appreciate it, and if you are making an effort to expedite things, and be efficient, then I'm not saying that that's going to win you your case, but you're not going to have a judge angry at the fact that they're stuck in a five day trial simply because you refused to try and work out some of the minutia, some of the issues in the case.

Leh Meriwether: Right. Another helpful thing is to come to court with final orders that you would like the judge to sign, even though that's not what he or she will ultimately sign, but the reason I like that and I actually incorporate it into the presentation of my opening statement is because it allows the judge to know what we're going to be asking for at the end of the case. "Judge, here's what the evidence is going to show. And based on that evidence, we are asking the court to award the following," and then I lay it out. I actually hand the court proposed orders during my opening statement so the court knows where we're going during the course of the case.

Leh Meriwether: And what's really nice is a lot of times the opposing attorney doesn't do the same thing, and so the judge is operating off my proposed order during the course of the trial, and they're checking off, "You know what, I'm going to award that. Not going to award that," and they strike through it, and that's fine. But it helps you so if you're a pro se litigant, it would help you get ready by laying out, "This is what I'm asking the judge to do."

Leh Meriwether: I'll never forget one of the family law conferences we had a panel of judges that talked about like, "Here's my ideal opening statement, here's my ideal closing argument." And one of the judges, it was Judge [Mackliay 00:18:23] said that, "You know, when you're giving your opening statement, tell me what you want, what you really, really want." She was quoting the ... I forgot the same of the song, but she kind of sung it, but she said one of her biggest challenges as a judge, people-

Todd Orston: Spice Girls, right, I think?

Leh Meriwether: Spice Girls, that was it, yeah.

Todd Orston: Oh my god, I can't believe I knew that. We're going to have to ... we're going to cut that out and edit it.

Leh Meriwether: [inaudible 00:18:45]

Todd Orston: I love the Spice Girls.

Leh Meriwether: But a lot of people come to court and don't tell her what they want. And so it makes her job, as a judge, much more difficult.

Todd Orston: Yeah. And let me say this also. It doesn't need to be long.

Leh Meriwether: Right.

Todd Orston: All right, sometimes what ... the trap people fall into, or the mistake that they make, is that again they feel like that's their place to make arguments as to why their positions are correct. It's not, you already covered that. But also, that it needs to be long. All right, you can do a quick opening statement in three, four, five minutes.

Leh Meriwether: Right.

Todd Orston: If you're organized. Write down what it is you're looking to accomplish, break it down and organize it. The way we organize it is what we call the four core areas of divorce. Custody issues, child support issues, spousal support issues, division of property and debt. If you organize it well, you can very quickly say, "Your Honor, thank you very much for your time today. What I'm looking to accomplish here is unfortunately after X number of years we are getting this divorce. Regarding custody, my position is that I'm looking for this kind of a schedule, I have a good relationship with my children, and this is what I'd like. Child support, we've worked out the numbers or I've done the numbers, child support should be X amount. Alimony I don't believe is applicable here and this is very quickly the reason, what I'm going to prove in the course of this matter, why it's not applicable. And division of property, this is what it should look like."

Todd Orston: Boom, that's it. "Thank you very much, and that's what I expect to establish and prove to the court today." And you sit down, and then other party goes.

Leh Meriwether: And I think it's important to understand that there are some judges out there, they are no longer on the bench, but there may be others, that make up their mind in the opening statement. Whether they should or not, that's a whole nother story and you won't know about it, but a lot of them do. And sometimes judges go, "Every time this lawyer's ever been in front of me, the evidence they claim they're going to prove, they prove." And so they kind of make up their minds, and I've had a case one time where I gave a very concise opening statement, laid out the facts and what we were asking for, and the judge paused the whole trial and said, "Counselor, do you disagree with that opening statement?" And the counselor's like, "No, I think Mr. Meriwether accurately laid out the facts." "Well, what they're asking for sounds really reasonable. Maybe you should try one more time to go outside."

Todd Orston: "But, but, but-"

Leh Meriwether: Yeah, she's like, "I'll be more than happy to have a trial, but that sounds kind of reasonable. Why don't you go out and try one more time to settle?" And we settled. So coming in there like that ... and we settled within 30 minutes. Which saved my client a whole day, potentially day and a half trial.

Leh Meriwether: Hey, and up next we're going to be talking about direct examination and why it's so important.

Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether & Tharp Show. If you want to read more about us you can always check us out online,

Leh Meriwether: Well today we're breaking down the mechanics of an actual final trial. Whether it's a divorce, or a modification, or legitimation, we're talking about the mechanics of what happens during the course of a final trial. And we've started off talking about the opening statements, and we broke that ... I think we did a pretty good job dissecting. We could talk about-

Todd Orston: Darn good.

Leh Meriwether: Yeah.

Todd Orston: I mean, I don't want to pay myself on the back but-

Leh Meriwether: You were fantastic.

Todd Orston: One of the best jobs ever in the history of radio. Is that too much? All right ...

Leh Meriwether: Maybe.

Todd Orston: I'm getting a lot of snickering in the room, so all right, I think I crossed a line.

Leh Meriwether: All right, but the next thing is direct examination. Now, most people that watch TV, they think the most important thing in the trial is cross examination.

Todd Orston: You can't handle the truth! Right?

Leh Meriwether: Yeah. And they just think that there's all these ... well they used to call them Perry Mason moments. And really, that's a myth. And in reality, 80% of cases are won or lost on a good direct examination.

Todd Orston: Now, a good gotcha moment in a cross, and we'll get to it.

Leh Meriwether: Yeah.

Todd Orston: That's fun.

Leh Meriwether: It is fun.

Todd Orston: So I'm not saying that it's ... if you think you think can successfully get the witness to sort of hang themselves, and make a mistake that becomes a gotcha moment, fantastic. It rarely happens.

Leh Meriwether: Right.

Todd Orston: Even for every good attorneys who have done this for years, getting that gotcha moment is very hard. So I agree with you.

Leh Meriwether: And it has to be on a critical fact.

Todd Orston: Absolutely.

Leh Meriwether: Because you can get someone on a gotcha moment, but that fact have nothing to do-

Todd Orston: That's right.

Leh Meriwether: With the whole case.

Todd Orston: That's right.

Leh Meriwether: Or maybe I'm a small ... okay, you won a dollar. But ...

Todd Orston: Yeah. So I agree that really the most, or one of the most important parts of a trial is the direct examination. Because that's where you are presenting your case. All right? Now the cross examination you are trying to prove your points as well, but that's really where it is your first opportunity to present the court with what it is you're looking to accomplish in the trial.

Leh Meriwether: Right.

Todd Orston: So, "Your Honor ... " again, in opening you've already laid it out, you've laid out the roadmap, now you start to flesh it out. And-

Leh Meriwether: And I think it's important to note that when you prepare your direct, it should lay out all the facts that you stated in your opening, because-

Todd Orston: That's right.

Leh Meriwether: That's where some people will get in trouble. If you said, "I believe the facts will show ... " and you don't show those facts in closing you better believe opposing counsel's going to highlight that to the court.

Leh Meriwether: All right, so make sure, like if you're preparing your direct examination, you've laid out everything that you're going to be talking about, with some exceptions, there may be some facts that you get from cross examination, like you said, and that may be part of what needs to be in the opening, but your direct needs to, at a minimum, mirror your opening statement.

Leh Meriwether: And what's important here is your lawyer can only ask you open ended questions. So it's important to review with your lawyer ahead of time what you're going to be talking about, so-

Todd Orston: And let's be clear, I want to make sure that that point is clear.

Leh Meriwether: Mm-hmm (affirmative).

Todd Orston: You have open ended questions and direct examination type and form questions, which are different than what you're allowed to do in cross examination. So in a direct examination, it is arguably your witness-

Leh Meriwether: Yeah.

Todd Orston: Or if it's you who is speaking, I mean, that gets a little bit different because you're really almost ... if you're handling this on your own and you're testifying, you're really standing up there and the judge is going to let you tell your story.

Leh Meriwether: Right.

Todd Orston: As long as there's no hearsay or other evidentiary issues and objections.

Leh Meriwether: Right, we'll have a show on evidence.

Todd Orston: Exactly. So if you are questioning someone, then you can't ask what's called a leading question.

Leh Meriwether: Right.

Todd Orston: Leading questions are allowed in cross examination because right off the bat there's the assumption that the witness on the stand that you are now cross examining is a hostile witness. So you are allowed to lead them. All right, but in direct examinations, you're not, and I will tell you, I have seen people handling things on their own who start to ask leading questions and get an objection from the other party and those objections are sustained. So you have to understand the proper form.

Leh Meriwether: So let's give a few examples. Like a leading question would be, "Todd, isn't it true that you didn't get anything for your wife for Mother's Day?"

Todd Orston: Objection. Big objection because never happened, and now I have to get something even bigger and nicer. But, yes-

Leh Meriwether: That's a leading question.

Todd Orston: That's a leading question.

Leh Meriwether: Right.

Todd Orston: As opposed to, whatever year we're talking about, "This year have you done anything for Mother's Day? Did you buy anything for Mother's Day? Speaking of buying things, did you buy anything for your mother for Mother's Day?"

Leh Meriwether: Right.

Todd Orston: These are direct questions, you are not leading. As opposed to saying, "Isn't it true you bought nothing for ... " you're asking a question and you will get that answer. If the answer is, "Nothing, I didn't do anything for my mom," shame on you.

Leh Meriwether: Right.

Todd Orston: But you've asked the question the correct way.

Leh Meriwether: Right. And so I guess the core thing is when you ask ... a leading question is designed to get a specific response. And asking, "Did you buy your mother a Mother's Day present?" That gives a yes or no answer, but that's an open ended question, it's not a leading question. Or, "What time of day was it when your husband came home and slapped you in the face?"

Todd Orston: Objection! Objection!

Leh Meriwether: Well that's assuming ... I've already laid the foundation that he slapped her in the face.

Todd Orston: Yes. Right, but you have to be, again, just be very careful. And the court will appreciate if you are well organized and you present the evidence correctly, because I've seen trials, I'm sure you have also, where somebody is trying to handle something on their own and they don't know how to ask the right kinds of questions. They are leading, sometimes they get to a point where they are ... it's not even a question anymore. "Isn't it true that you pushed me and then when I went outside and I was moving the law because the grass a little bit big, and then I went and grabbed lunch and lunch was pretty good, and then ... " and the judge is like, "Hold on, is there a question there?"

Leh Meriwether: Right.

Todd Orston: You have to be efficient.

Leh Meriwether: Yeah.

Todd Orston: Okay? And by that I mean you're not there to tell ... you're there to paint a picture-

Leh Meriwether: That questioner-

Todd Orston: The question should not be you painting a picture and telling a story, it's really, the rule of thumb that I have heard is you should be looking to accomplish presenting the court with one fact per question.

Leh Meriwether: Right.

Todd Orston: If you can establish one fact with every question, then you're doing a good job. And what do I mean by that? If you need to prove that someone came home late, let's say it's divorce, and let's say someone came home drunk. And they got home at midnight, and they smelled like alcohol, and they crashed the car and they were drinking. You're not going to ask a question, "Isn't it true last Sunday you came home and you smelled like alcohol and you got into a car accident because you were out drinking?"

Todd Orston: "Isn't it true that you went out last Saturday night?" And the direct would be, "And when you went out last Saturday night were you drinking?"

Leh Meriwether: Yeah.

Todd Orston: And, "If you were drinking, did you then get behind the car and drive?"

Leh Meriwether: Those can go-

Todd Orston: That'd be a direct-

Leh Meriwether: Right.

Todd Orston: But my point is-

Leh Meriwether: But it might be-

Todd Orston: But if it's a cross, you could say, "Isn't it true you went out drinking last Saturday night?"

Leh Meriwether: Right.

Todd Orston: "Isn't it true you got into a car accident? Isn't it true that when you came home you got into an altercation with your wife and pushed her?"

Leh Meriwether: Right. But from an opening ... I mean, a direct examination standpoint, you would ask ... so let's say it's your witness-

Todd Orston: Right.

Leh Meriwether: You need to get this information out. "Have you had issues with your husband drinking and driving?"

Todd Orston: Right.

Leh Meriwether: "Yes." "Can you give the court an example?" So again, open ended-

Todd Orston: That's right.

Leh Meriwether: You're not leading them. "Yes, there was this time on Saturday night where he came home drunk." "What else happened? About what time was this?" "It was about midnight."

Todd Orston: Right, and if you said, "And that happened at what, about 10:00?" You've just led the witness.

Leh Meriwether: Right.

Todd Orston: As opposed to, "And what time did it happen?" "10:00" is the answer. Now that was a properly asked question. So you can't ... it's very clear in the name, you can't lead the witness to the answer.

Leh Meriwether: Right.

Todd Orston: All right, as opposed to on cross where you can lead them, because again, it's assuming that they're a hostile witness, and so you are given some leeway to lead them to the promised land, if you will.

Leh Meriwether: Right. And I think here's an important fact in direct examinations a lot of people miss. If there are bad facts on your side, if there's something you're afraid of the judge hearing, then you need to go ahead and get it out in direct examination. Because if you wait to be asked by the opposing party on cross examination, it looks as if you're trying to hide it.

Todd Orston: Yeah, unless you have some really good skill and you've thought through the strategy, then I agree with you. Most of the time you want to, what I'm going to call steal their thunder.

Leh Meriwether: Exactly.

Todd Orston: And just head it off, and deal with the issue, because you're dealing with it in a way that hopefully will soften it some for the court, as opposed to you don't even bring it up, it looks like you were trying to hide it, and it comes off ... it comes across in cross examination, and it doesn't look good.

Leh Meriwether: And I've seen situations where ... I mean, it was ... the facts were bad. Where they were so bad the other side thought they were going to win this big jury trial. But in direct examination, the question was asked, "Well sir, have you ever cheated on your wife?" "Well, I'm really embarrassed to admit this, but I actually hired prostitutes towards the end of our marriage." "And how much money did you spend on them?" "Probably $20,000.00." Wow, that sounds incredibly stupid. Why would you do something so stupid? But now keep in mind, this was all prepared. And then he proceeded to tell how his wife had emasculated him for years, how she was in and out of alcohol treatment and he was horribly embarrassed, and he told the jury, "You know what, she should get $20,000.00 off the top," and the jury did exactly what he suggested.

Leh Meriwether: The other thing I suggest is that we come right back and talk about cross examinations.

Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to the Meriwether and Tharp Show. If you want to listen to us in other recordings, you can always check us out online at

Todd Orston: You almost tripped up there.

Leh Meriwether: I almost tripped up.

Todd Orston: All right.

Leh Meriwether: I changed it up.

Todd Orston: Yeah, yep.

Leh Meriwether: I changed it up.

Todd Orston: I was about to pounce. You just ...

Leh Meriwether: So today we're talking about the mechanics of a trial. And so far we've broken down the first two parts, an opening statement, a direct examination.

Todd Orston: And we've touched on cross.

Leh Meriwether: And we've touched on cross.

Todd Orston: To a certain degree.

Leh Meriwether: And we've spent a lot of time on those two factors, because they are ... sometimes they can kind of be boring, and sometimes it's the most difficult part of preparation, but it is the most important.

Todd Orston: Yeah. And the best advice I can give anyone going through this, and this really applies to both direct and cross, write out your questions.

Leh Meriwether: Yeah.

Todd Orston: Do not think that you are going to be able to shoot from the hip and just wing it, because I have seen people just freeze. I have seen people ... they'll try-

Leh Meriwether: And then they don't get the evidence in that they need to get in.

Todd Orston: That's right. And they try, and they fail, and there are objections in the form of their questions, and then the judge looks at them and says, "Is there anything else? Nothing, all right, please have a seat."

Leh Meriwether: Yeah.

Todd Orston: And they didn't accomplish anything. So write out your questions, and again, if you're organizing it, organize it in the form of look for each question, on the direct, each question to just prove one fact. And that applies also to cross.

Leh Meriwether: Yep. Even more so to cross.

Todd Orston: Even more so to cross. Don't think that ... it is not better to have a very long winded multi part question that really is asking sort of that example I was using. You don't want one question to verify or prove that your spouse was drinking that night out at a bar, crashed the car, and came home and was belligerent. One question should not give you all of that information.

Leh Meriwether: Yeah.

Todd Orston: You need to break it up into individual questions. So if you write out your questions you're going to be in a much better position. And the court's going to appreciate that.

Leh Meriwether: Now a quick ... normally so you give your direct, and then the other side gets to cross examine that person, so that's what we're talking about here. Now here's some important things, I'm going to hit the important things first and then talk about cross examination questions.

Todd Orston: Yeah, and before you do let me ... because we've been talking about these things very quickly, I want to just lay it out so what we're talking about is the plaintiff does an opening. The respondent or defendant does their opening. The plaintiff presents their evidence, or like you were saying before-

Leh Meriwether: Yeah.

Todd Orston: And I just want to make sure it's clear. So the plaintiff puts on their case, and then the respondent or defendant gets to cross examine those same witnesses as they're being presented.

Leh Meriwether: As they are putting up, yeah.

Todd Orston: Then when they close, it's the respondent's turn to direct, and then the plaintiff or petitioner, that attorney gets to-

Leh Meriwether: Right.

Todd Orston: Cross examine. So-

Leh Meriwether: [crosstalk 00:36:01]

Todd Orston: I wanted to make sure that it was very clear, really, the structure and how it plays out.

Leh Meriwether: Right. All right, so here's some facts to remember on cross. There's so much ... your rules of questions are so much more open there. But first off, one of the hardest things is you're not there to argue with the witness. They may give you an answer you don't want, and a skilled attorney will redirect them with better questions. But you don't want to be there arguing with them, you save that for closing argument. So that's one thing that people can tend to get wrapped up in. You're not there to testify. You're not there to ask, like you just ... that example you gave earlier with this long question, you want short questions designed to get certain pieces of evidence out. You want to ... you do want to lead there, "Isn't it true that ... and that's when you slapped your wife in the face, isn't that right?" And so you are designing ... you design the questions to get a yes or a no.

Todd Orston: Your job is to control the witness. If you are not asking leading questions you cannot and will not be controlling that witness.

Leh Meriwether: Right.

Todd Orston: Which means you are going to be giving that witness a lot of opportunity to add information, and testify, and usually the things that are being added are not helpful. I've seen the examples where I've actually let a witness keep talking, because I'm getting gold.

Leh Meriwether: Right.

Todd Orston: They're just saying things and I'm like, "Wow, you don't even need me, just-"

Leh Meriwether: "I didn't even know you were going to say that."

Todd Orston: Right, so but you have to control the witness, and you don't do that by being mean, you don't do it by being rude. You do it by asking questions the way we're describing.

Leh Meriwether: So here's a good example of not being mean or rude when ... and now it's not a divorce case, it's a personal injury case, but it's just a fun one. So an expert witness is being cross examined by the plaintiff's lawyer, and the plaintiff's lawyer said, "And that's when the plaintiff was thrown from the car." "Well, I wouldn't say they were thrown from the car." "Oh, you wouldn't?" "No, not exactly." "Okay. Well let's go with the facts. The plaintiff was driving the car." "Yes." "And the defendant struck the driver's side of the car." "Yes." "And at the time the defendant struck the driver's car, they were going 55 miles an hour?" "Yes." "And the plaintiff left the car through the driver's window." "Yes." "And at the time they left the car, the window was rolled up." "Yes." "And then after they broke through the window, they landed 30 feet from the scene of the accident." "Yes." "And so would you agree with me they were thrown from the car?" "Yeah, they were thrown from the car."

Leh Meriwether: So but at that point-

Todd Orston: You controlled the witness.

Leh Meriwether: I controlled ... yeah.

Todd Orston: Yeah. And that's a great example of controlling the witness because ... and what's great there is you didn't just prove that the victim was thrown from the car. That's only part of the importance. The other important part and the other value is that you questioned the credibility of the witness.

Leh Meriwether: Right.

Todd Orston: If the witness was unwilling to define that as being thrown from the car ...

Leh Meriwether: Then they lost all credibility.

Todd Orston: They just lost some credibility in the eyes of the fact finder, whether it's a judge or jury, because it's like really? You're going to sit there and argue going through a closed window and landing 30 feet from the car shouldn't be defined as being thrown?

Leh Meriwether: Right.

Todd Orston: So I don't know if I can listen to or believe anything else you're saying.

Leh Meriwether: Yeah.

Todd Orston: So there's multiple values that you get from those types of questions.

Leh Meriwether: So that's one example, I've had a few that were really gotcha moments that was going into the trial where we were going to lose, I had a case where there was about two million dollars on the line. And they had an expert witness, and thankfully I had the rules for evaluating ... there's actually a hotel that one party owned, and the person who came in to give the value didn't follow the rules of the appraisal, his own appraisal ... authority. And during cross, I got him to first admit, just like I just ... very short questions, admit that that's the guidelines, that there can't be a valid appraisal without those guidelines, and then we pulled out the guidelines and he only met eight of the 12 requirements. And so I said, "So if you didn't meet these four, you did not properly value this business, did you?" "No."

Leh Meriwether: Because originally, at the very beginning though, it said, "In order for this to be a proper evaluation, you have to meet all 12 requirements. Is that right?" And he said, "Yes."

Todd Orston: But you got that Perry Mason moment.

Leh Meriwether: Right.

Todd Orston: Because you were prepared.

Leh Meriwether: Yeah, I was prepared.

Todd Orston: You know how to attack the witness, you didn't just go in and wing it. You went in, you were organized, and you attacked the process. But I also bet, because I also know you, you did it respectfully.

Leh Meriwether: Yes.

Todd Orston: Because the court doesn't want to see you arguing, again. They don't want to see you being mean or aggressive. I understand, especially if it's family law, the person on the other side that is being questioned is maybe the spouse that you are trying to divorce. Or it's somebody that there is an emotional response, that you want to just be argumentative. The court doesn't want to see it, so be very careful.

Leh Meriwether: Yes. All right, closing argument.

Todd Orston: My favorite part.

Leh Meriwether: We only have two minutes left for it.

Todd Orston: All right, we're going to have to do a whole other show on closing. Closing argument is, as a litigator, it's for me, the most fun. It's where most of the theater can come in. And by that I mean you still need to handle the basics, you need to say, "In essence, in opening I told you I was going to be proving these things. In direct, I proved X, and Y, and Z. In the cross examination of this witness, or this witness, I was able to show this court one, two, and three."

Leh Meriwether: Yep.

Todd Orston: "So I met the burden that I set for myself, I proved these things." But you are also flavoring this closing argument with some of your dramatic flavor.

Leh Meriwether: Right.

Todd Orston: You are talking about like-

Leh Meriwether: Like the lawyers do-

Todd Orston: Like a lawyer.

Leh Meriwether: If you're not a lawyer and you're representing yourself, don't worry about that part.

Todd Orston: But what you want to focus on is if you are, let's say, a father and the other party is trying to limit your time, you want to be looking at that judge saying, "I love my kids. I have been there since they were born. I have done anything and everything I can for them, and I want to make sure I have a continuing healthy, strong relationship with them, and that's why what I'm asking for is reasonable. I'm not doing it to punish the other side, I'm not asking for it because I don't like their mother." All right? Or if a mother is saying that the husband has been uninvolved, and he's asking for joint custody, "Your Honor, he has never had that kind of involvement in their lives, and that's why this would not be a healthy arrangement."

Leh Meriwether: Parenting plan.

Todd Orston: "Parenting plan for the kids."

Leh Meriwether: And then that's when you can ... if you're struggling with it, fall back on your proposed orders. "Your Honor, we're asking for this."

Todd Orston: That's right.

Leh Meriwether: "I think it's reasonable because I've always been involved in our kids' lives as I laid out to you at this court during my direct and even on cross, yeah, I gave even more times I was there." So just use that, and then when the judge gives the ruling just be very respectful. Don't ... even if it doesn't go your way, be respectful, just like we have to be respectful to our time. Because unfortunately we're out of time.

Leh Meriwether: Hey everyone, thanks so much for listening. If you missed parts of the show you can always go back and listen to it again or read the transcript at