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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.