Tuesday, November 04, 2008

The Decline of Litigation and the Paradoxical Increase in the Need for Witness Preparation

Even before the economic climate turned stormy, family law litigation has been on a trend toward less litigation and more mediation and collaborative law. This trend is very beneficial for both children and divorcing families, and I expect the trend to continue. As with any significant change in the legal system, this one has consequences for lawyers and their clients that may not be obvious, because the cause and effect are so distant in time and challenging to discern.

In short, the fewer the number of hearings or deposition appearances by the parties, the more important each appearance becomes in determining the final outcome of the case. In the old days, lengthy litigation meant multiple hearings, sometimes repeated depositions, and then a final trial with a full day on the stand for each party. Generally, that meant a terrible performance by a party at a temporary hearing would be separated by a year or more from the final trial, giving the judge plenty of time to forget the first performance or to explain it away to "nervousness" or "stress". Those days are gone.

Today, a temporary hearing may be the only court appearance a party makes during a divorce or custody case. Depositions are unlikely to be seen by the judge or jury, leaving the temporary hearing performance of the parties of increasing importance for judicial decision-making or for negotiation leverage. Consequently, the importance of witness performance early in the case increases as the length of divorce litigation declines.

What hasn't changed though, is what makes witnesses effective.

1. Well prepared witnesses don't look coached, they look confident and calm.
2. Well prepared witnesses are responsive to questions because they understand the rules of evidence.
3. Well prepared witnesses give answers that are brief and clear.
4. Well prepared witnesses tell stories and give examples and avoid making judgments.
5. On cross examination, well prepared witnesses answer "yes" "no" or "I don't know" and do NOT try to explain.

These characteristics of effective courtroom communication have only increased in importance as the number of opportunities to testify decline. In courts where hearing times are increasingly limited, the need for intense preparation and crisp performance increase exponentially.

Due diligence requires that attorneys give clients the tools they need to compete effectively in the legal arena where most clients have NO experience and many unhelpful tendencies to unlearn. There is no substitute for effective, professional preparation, and the need is growing daily. Delay disadvantages both attorney and client.

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