A compelling direct examination is the foundation of a successful trial. A weak direct will lose your case much more quickly than a weak cross-examination. In domestic violence cases, direct examination sometimes makes up your entire case-in-chief, and the importance of conducting it skillfully cannot be overstated. The challenges associated with conducting the direct examination of a client who still suffers from the effects of abuse make the task of preparing for direct even more arduous. Many survivors, even those represented by attorneys, may clam up on direct examination in ways that can negatively affect their cases. Counsel clients on the need to tell their story to the judge and why.

In short, an effective direct examination of your client will do the following:

• Support your case theme with facts and details.
• Evoke specific and compelling imagery of your client’s experiences of being subjected to abuse.
• Minimize the impact of stereotypes about victims and strategies abusive former partner and their attorneys use against victims in family court.
• Establish the necessary factual basis for your legal claims.

Every case is different, and lawyers should avoid a “one size fits all” approach to direct. But this section proposes a general outline for direct that can help structure direct examination in most protective order cases.

1. Establish the identity of the parties and their relationship to one another.
   • Include any other foundational facts that you need to prove as a preliminary matter to entitle her to a protective order. For example, how long the parties have been in a relationship, when the relationship ended, and whether they have children. If the client’s petition lists children as protected persons, ask about their names, ages, and relationship to each party.
2. Ask one or two introductory questions that help your client feel more comfortable and will tell the judge a little bit about her – other than the fact that she is a victim of abuse.
   • Does she work outside the home? Is she a full-time parent? Where are the children in school? Is she in the military? The key is to ask simple questions that the client can answer easily – these often serve to help calm a client down and lift the anxiety felt while testifying in open court. These questions also present the opportunity to make a favorable impression on the judge, by allowing your client to talk about something positive in her life that is not related to the abuse she has experienced. Keep in mind that many clients will not necessarily associate a job with their sense of personal identity, so be respectful of that and don’t always use employment as a way of introducing your client to the court. But if your client has a job that places her in a position of trust or responsibility, that information can be used to help paint a picture of your client that is helpful.
3. Provide preliminary information about any children who are the subject of a request for protection or temporary custody.
   • If you haven’t done so already, make sure your client testifies upfront about the children’s names and ages and usually their schools and what grade they are in. Often, judges want to know right away what their living situation is. Have your client testify about where the children are living and how long they have lived there. If there are complicated custody issues because an abusive party has recently taken the children, provide a brief overview of that, and come back to it in more detail later – after testimony about the history of abuse (as it may then be viewed in a different light – as part of a pattern of abuse). Try not to get in depth on custody issues at this stage of direct – you do not want to leave the court with the impression that your case is a custody dispute veiled as a protective order proceeding.
4. Ask preliminary questions that put the most recent incident of abuse in context.
   • An effective direct examination will begin “painting a picture” for the trier of fact and trigger the listener’s imagination. The lawyer must direct the testimony so that the client stays focused on the core narrative but also contextualizes it enough to make it vivid and compelling. You should begin this process by “setting the stage.” Ask your client where she was and when, and elicit any other key information about the setting (the time of day, which room in the house, etc.). Eliciting details like this will help trigger your client’s active memory of the event, which is helpful for avoiding generalized descriptions such as “we were fighting and he hit me.”
5. Follow up and clarify. Ask questions about anything your client “glossed over” and clarify any vague or confusing language.
   • If your client is protecting herself emotionally by giving vague descriptions of the abuse she experienced, it is your job to ask more questions and elicit the details necessary. Your client may have left out key information about threats the abuser made during the incident, or other important information. In addition to clarifying and following up about missing information, also go back and “elongate” testimony about important incidents, such as those involving strangulation. Ask your client for details such as whether the abusive party used one hand or two, whether her breathing was restricted, what she was thinking and feeling, and details she remembers about the abusive person during the strangulation, such as what he was saying or the look in his eyes.
   • Another issue you may need to clarify at this stage is any statements your client may have made that made it sound like the violence or “fighting” was mutual.
6. Go through each additional incident you plan to present similarly, and then wrap up with testimony about the general frequency of the conduct.
   • Ideally, select three or four of the most compelling incidents for detailed testimony. Highlight the most recent incidents, incidents involving strangulation, death threats, guns, weapons, injuries, arrest, or stalking, and any incidents involving the children. If there are countless incidents like these, highlight three or four of the strongest, and then provide more general information about the nature and frequency of the abuse.
7. Ask questions that wrap up the story of the abuse and move the client out of trauma before she must answer questions from opposing counsel or the defendant.
   • While it can be tempting to end direct at the most powerful moment, it can be self-defeating to turn your client over for cross examination while she is still reeling from testimony about the abuse. Order your direct so that you can transition your client to topics not related to the abuse before it ends. Typically, you can do this by asking questions about entitlement to ancillary relief. This may be a good time to return to any custody issues, including testimony about your client’s role as a primary caregiver to any children at issue.
8. Address negative facts to take the sting out of her anticipated cross-examination. “Bury” this in the middle of the direct.
   • ​​​​​​​In this section, you should address any issues you expect to be weaponized against your client during cross-examination, such as why she didn’t call police, why she didn’t tell people about the abuse, whether she also hit the defendant, prior arrests, etc. The goal is to frame unfavorable facts before the defendant or his attorney has a chance to do so, but not to “highlight” them. Make sure that you have reconciled any issues that can be used against your client to make her seem not credible or mutually violent. For example, this is where you may need your client to explain facts such as post-TRO contact she initiated with the other party.
9. Ask questions that establish her entitlement to ancillary relief, such as custody, support, use and possession of a home or car, etc.
   • Make sure to ask questions that lay the foundation for ancillary relief.  For example, if you don’t have your client testify about the fact that she needs the family car to drive the children to and from school and then to her job, the court may be inclined to grant the car to the abusive partner, especially if it is registered in his name.
10. Finish strong.
    • At this point, the testimony about abuse has often been followed by testimony about issues like child support and financial issues.  Make sure to go back at the end and remind the court why your client is here. End by asking a question or two that will allow your client to communicate something about either her fear of the defendant, how her life and/or her children have been affected by the abuse, or how the defendant’s behavior is escalating. This can be a good time to elicit testimony about the emotional toll of abuse and stalking, or to have your client describe the burden of changing daily routines and activities to stay safe.
    • Remember to always plan ahead about where in this outline you will authenticate and introduce exhibits, and prepare objection responses in advance.

Always schedule time to meet with your client and go through her direct examination before court. Begin by explaining your goals for the direct examination, what issues will be important, and what issues will not. Talk to your client about any tendencies she may have to gloss over details, to appear angry or defensive, or to minimize abuse. Then role play the direct examination, giving the client feedback about anything unclear or confusing, as well as her pacing and demeanor. The role play will help you adjust your direct examination outline as needed before the hearing. Other tips for client preparation:

• Frankly discuss the emotions the hearing might trigger.
• Don’t discourage emotional expression during her testimony.
• Encourage honest emotional responses in the courtroom (except anger, which can be weaponized to suggest she is the aggressor or mutually violent).
• Explain why it is important that your client tell what happened to her.
• Advise her about the importance of tone and body language for credibility, as the court will be watching both of them while they are testifying and even while they are not.
• Make sure your client understands that being “tough” to prove something to her abuser in court can backfire.
• Reconcile all inconsistencies or seemingly illogical facts and behavior in advance of court, by pointing them out and addressing them.
• Ask your client whether she is worried about any issues that might be brought up in court.
• Make sure your client understands your case theme, and what facts and evidence in her case are most compelling and best support her claims. While a lawyer should never manufacture a client’s testimony, it is critical that the lawyer prepare the client to testify about what is important to the judge and to leave out what is unimportant.
• Encourage your client to use language and style that is natural to her (except when it is necessary to slow her down).
• Avoid discussing domestic violence terminology that, if repeated during client testimony, will sound disingenuous and coached (e.g., “He’s obsessed with power and control.”).
• Identify a client’s tendency to be distracted by issues that do not support her “core story” (e.g., the abusive former partner’s infidelity). Talk to her about what the focus should be on in court, and why.
• Identify and address a client’s tendency to “gloss over” details of painful events. Practice doing it differently.
• Identify and address client’s tendency to minimize, deny, or use language that characterizes abuse as mutual.
• Ask the client to make a timeline of abuse that can serve as a reference point for both of you.
• Make sure she understands the process of objections.
• Practice the direct, for both substance and pace, and to ensure that the client can tell her full story.
• Prepare the client for a judge’s questioning style, as some judges use an inappropriate questioning style that may intimidate or traumatize a victim. You do not want your client to be surprised by an untrained or unkind judge’s aggressive style.

An essential part of preparing your client for court is preparing her for cross-examination. She needs to know what to do when questioned by opposing attorneys or a pro se defendant. Explain the process and what types of questions the abuser or opposing counsel might ask. Reiterate that this is not a time to get into an argument, but rather to answer questions concisely and without a lot of explanation if possible. Explain that they should pause before answering so that you have a chance to object, and make sure they know to stop talking if they hear you object. Explain that often the party conducting the cross will be trying only to prove that she is an “angry” woman and so getting into an argument will only help the abuser’s case.

It is especially important to talk with clients about the possibility of being cross-examined by her former abusive partner. Reassure her that it is your job to object to any inappropriate questions or aggressive conduct and that you will come back after the cross is finished to ask questions and clarify any answers that seemed incomplete or misinterpreted. Also, tell your client that if it feels more comfortable, she may look at the judge, instead of the defendant, when answering his questions.

After you have discussed these issues with your client, role play the cross-examination. Make sure your client clearly understands that it is a role play to help her practice for court, and you will pretend to be aggressive and insensitive. Before the role play, you should brainstorm all potential issues for cross and focus on some of the most unfavorable facts in the case. Be sure to consult with your client about what she believes the abusive party’s strategy will be, and what kinds of things he will try to say or bring out to make her look bad or not credible.

In domestic violence cases, children are often the only witnesses who can corroborate the victim’s testimony about abuse in the home. But many judges believe strongly that children should not testify because of the risk that the experience of testifying will be traumatic. In some cases, however, the child’s testimony is essential to securing orders of protection that will prevent future harm. The child’s testimony can make it more likely that the child will be safer in the future. But children, like all people, are complicated. They can exhibit a wide range of responses to their experiences of abuse, all of which must be planned for. Clients often accurately predict how children will respond to questioning, and this can help lawyers decide whether to call a child witness and how to prepare.

In Louisiana, children’s testimony in family law cases is generally taken through a Watermeier hearing.1  Although some courts expect attorneys to file motions for a Watermeier hearing if they intend to call a child witness, most courts will not allow child testimony through any other process anyway, unless the child is 16 or over. During a Watermeier hearing, the child’s testimony is taken in chambers on the record rather than in the courtroom, and the questioning is conducted by the judge instead of the attorneys. Attorneys should be allowed to provide proposed questions for the child in advance of the hearing, though there is no guarantee that the judge will ask every question proposed.2  Attorneys are also afforded the opportunity to be present in chambers for the child’s testimony. Opinions differ about this practice. Many attorneys feel strongly that it is essential to be present when the judge speaks to the child, so that he or she can assess whether follow up questions are needed or whether the questioning sufficiently addressed key issues. It can also be important for attorneys to know exactly what was said without the necessity of ordering a transcript because it may be necessary to incorporate the evidence into argument or to present evidence in rebuttal. On the other hand, some attorneys choose to waive their presence in chambers during the child’s testimony, especially if the defendant is pro se and would be entitled to personally sit in on the testimony if the lawyer does. To avoid the possibility of intimidation, it could sometimes make sense to have neither the petitioner’s attorney nor the defendant present. Carefully consider the risks associated with foregoing the opportunity to personally observe the interaction, as well as the risk of intimidation.

If a Watermeier hearing is desired, the attorney should file a motion with the court requesting a hearing to determine whether the Watermeier process is necessary and appropriate for the child. Children who are too young will likely not be allowed to testify, and children over the age of 16 are often required to take the stand to allow for cross examination by an attorney or the other parent.

• 1Watermeier v. Watermeier, 462 So. 2d 1272 (La. App. 5. Cir. 1985).
• 2See D.M.S. v. I.D.S., 2014-0364, p. 5 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1132 (providing detailed account of Watermeier procedure and factual findings).