The Three Bears, as it applies to Family law court
In Court, the other day . . .
You have your notes—questions for your client, questions for the other parent, questions for any witnesses. You’re ready. But trial seldom goes exactly as planned. Opposing counsel asks some questions you don’t know the answers to, or weren’t expecting, the witness answers in ways you did not envision, the judge is impatient. All these happen regularly.
The question is, besides dealing with the curve balls of unexpected questions, facts, or answers (all normal in every way), is, how much is too much. How much is too little. How much is just right.
Most hearings or trials are a certain length—2 hours, or 4 hours (really less than 4 hours), or all day. But in reality this means, after you finally have the case called, the judge and counsel deal with any housekeeping issues, and the hearing begins, a 2 hour hearing is really only 1 hour and 40 minutes—at best. Divide that by 2, and each side gets 50 minutes. This 50 minutes is all you get and you have to manage this time for direct examination of your own client and witnesses, and for re-direct of those parties after opposing counsel has their own cross examination, and also for cross examination of the other parent and any witnesses the other party has. Yikes.
Only 50 minutes for all that. Or if the hearing is set for half of a day, you get, say, 105 minutes for each side. That’s what you get. That’s all. Now, under certain circumstances the court will allow longer, the hearing may be continued. But there is plenty of case law that says, under certain conditions, you only get what you get. Deal with it. So deal with it I must. And deal with it I will.
So back to the question—how much is too much. How much is too little. How much is just right.
The easy answer is, the right amount of direct examination, the right amount of cross, is the amount that means the judge finds in your client’s favor. The harder answer is, you have to cover the statutory basics, you have to cover any issue an important case that applies deals with, and you have to deal with any issue you know the court wants to know about. After that, well, there is no easy answer.
It’s like smelling the wind. Is the judge engaged, making notes, watching the witness carefully? Is the witness answering the questions, battling the lawyer if its cross, having a hard time? Are the bases you want and need to be covered being addressed. And getting addressed in the way you need them to.
Being a trial lawyer is a hard thing. You have your client, the other party, the other lawyer, the judge, the rules, the cases, the statutes. All have to be juggled. All have to be dealt with. Like the three bears. The right amount is the amount the works. Sometimes softer, sometimes harder. Hopefully, always the amount that is just right.