Transcript

Brandi Crozier: I would rather, at the beginning, have more information and be able to narrow it down from there than too little information and have absolutely nothing.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host, Attorney Holly Draper.

Holly Draper: Today on the Texas Family Law Insiders podcast, I’m joined again by my partner Brandi, and we are going to have a discussion today about how to prepare clients for evidentiary hearings. Be that temporary orders or some other type of family law case where your client is going to have to testify. So Brandi, why don’t you kind of start out by giving us a little information about your typical pre hearing prep with the client.

Brandi: All right, well, hi, everybody. So I think it depends on the type of hearing that you have coming up and what the prep looks like for the client. But let’s just talk about this in the context of a family law case where we’re dealing with kid issues, in particular. And if we’re having a temporary orders hearing on that type of case, then I think it’s really important to have a meeting with your client in advance, that gives you about an hour to go through and really figure out what they want. And what they want to do in the case.

And so once you have that, and you’ve had that meeting with the client, then what I will do is I will go through, and then I’ll start developing questions for the client on those issues to reflect what they want through their testimony. Okay, and if they have any exhibits that we think we’re going to want to use and things like that, I try to incorporate those in as well. And then what I like to do is I like to go back, and I like to have a hearing prep session with a client at that point as well. And that, from my perspective, helps out on two fronts, one as the attorney because in the Dallas area, for the most part, you’re limited on time, in what you’re able to do for temporary orders hearings.

Now, sometimes that’s not always true if it’s a special set, but typically, you’re looking at 20 to 30 minutes per side, which isn’t a lot of time. And so it gives you the ability to time yourself and your client, when you’re preparing those questions as well. And then you also get to help your client get used to being examined. And while they’re not under the court’s eye at that point, it does help, I think to have a run through with the client so that they get used to the flow.

Holly: Especially when you have short time limits. It’s good, that can help you figure out do I have a talker on my hands? Do I have somebody that’s gonna ramble, and how what’s my cue to this client going to be that you need to stop, because we’re not gonna get to the important things here. You know, I usually tell clients, you know, this is your opportunity to tell your story and to have the judge understand why he or she should be ruling the way that you want. But at the same time, we got to get that point across in a hurry. So if you happen to go off on a rabbit trail, and you start talking too much about things that aren’t important, I’m going to say thank you. And that’s your clue to stop.

Brandi: Right, I do the same thing. I you know, and if you can, if your client can afford it, and depending on what’s going on in the case, I like to bring in another attorney from our firm and tell the client, you’re going to pay them to be a little bit mean to you for about 15-20 minutes, and have them be cross examined. And so that is always, it’s always from my perspective, it’s always kind of fun to see what the associate or the other attorney can do, especially if they don’t know a ton about the case. So you get to see someone else on your team in action, because we don’t always get to see that.

But then it also you can help your client know what a cross examination question is going to look like. And when you’re doing that type of practice with the client, I always try to reiterate to them like you have to be very careful and have your super listening ears on when you are being cross examined. Because their job on the other side is to try and paint you into a corner and get you to answer. And so I think it’s important to give the client you know, the confidence to go in and be prepared for cross cross examination as well.

Holly: Backing up a little bit, let’s talk about that initial meeting that you have with the client to get information in order to prepare for the hearing. It really never ceases to amaze me. The percentage of attorneys on the other side who have clearly not done anything with their clients to prepare. We’ve had clients come to us after working with prior attorneys who never saw questions in advance, weren’t told even topics that they were going to be asked about and they’re just, they’re just flying blind. So I love how we help clients be prepared for those hearings. And I think it really helps set them up for the best possible outcome. We obviously can’t make up the facts, but and we have to work with whatever facts we have.

But we can certainly help put them out in the best light by being really well prepared. But with that first meeting, you know, one of the things I like to do is make sure that the client is telling me, what do you want the judge to know? And oftentimes, they’ll tell me something that leads me to ask other questions, but it’s really the opportunity to find out what are the big issues for this client? What do we have to make sure, are top priority questions, and you know, when you’re in a time crunch, especially if there’s a talker somewhere, then you’re going to have to know how to cut them on the fly. And knowing these were the priorities for the client, helps you cut out the things that are less important.

Brandi: Right. And I think that it’s just a matter of the attorney when you’re having that initial kind of hearing prep session, because I break it up into two. The one is to get me the information that I need to know to go ahead and write out the questions for the story that we’re going to tell the court. And then the second one is to do the run through with a client. So I think that at that first one, I always ask the client, okay, what is it that you want here? What do you want the court to do?

And you can have that, and at the same time, when you’re doing that call with the client or the meeting with the client, whatever it may be, you also get to set expectations, because you have a client who comes in and says, well, I just want sole custody. Okay, well, what does that mean to you? Because so many clients go out and they talk to everybody from here to you know, Houston about what’s going on. And they have so many opinions and what that really means, and I think a lot of clients don’t necessarily know what sole custody is, versus joint managing conservatorship and those sorts of things.

So during that initial prep meeting, it’s also an opportunity for the attorney to explain to the client, what that’s really going to look like, and what different possession schedules can look like. Because I think a lot of clients have misinformation about what they can and can’t ask the court for. And just because something looks a certain way for their best friend or their sister doesn’t mean that that’s what’s going to happen in their case. And it can also come down to what county you’re in, because there are definitely counties in our area that will surely do one thing, but another county might not.

Holly: Well and even which judge you have within the county, right. But it can vary dramatically, which is unfortunate that that’s the case, but it’s very luck of the draw, which judge do you end up with? And, okay, now we know what, who your judge is, we can hopefully give you an idea of what this judge is likely to do based on the facts of the case.

Brandi: Right. And so it’s also a matter of, you know, which position are you in at that temporary orders hearing? Are you the petitioner or are you the respondent as well. Because even if you’re still the respondent, and I think you and I have both seen this, where the respondent sometimes I have seen more respondent sides not prepare their clients for temporary orders hearings, they kind of just do it on the fly, at least that’s been my impression from a lot of things that I’ve seen.

And I think that that’s not a good strategy. I think you can still prepare your client in the same way you would, even if you were the petitioner. Now, granted, it’s flipped, oftentimes, but then you give your client the confidence to know that, hey, they’re going to try and get out all of these bad things about you to begin with. But it’s our job then to come back in and rehab you, and to get you to a place where you’re telling your version of the story.

Holly: I think in most temporary orders hearings, at least, the respondent ought to have their own requested relief on file too. Whether that’s through counter petition, or that’s through a motion for temporary orders. But because they’re requesting relief, I think you want to approach it almost exactly the same way, you’re just going in a little bit different order. If you don’t request relief, you can find it, you could be in a lot of trouble because you all you can say is don’t do what the other side wants. But unless it’s a modification, where you really, you already have an order that gives you the status quo and you want the status quo, then you’ve got to have an affirmative request for relief on file.

Brandi: I agree with you. And I think it’s also during that initial client meeting too. It’s important to go over the list of rights and duties. So the clients understand what those are. Because some clients are like, oh, wait a second, we have to, you know, what are my options here when it comes to making medical decisions for my kids. Or psychiatric or psychological or even the school issues. And so those are things that I think you really need to have knowledge about what your client really wants from that regard. Because I know, it hasn’t necessarily happened to me. But I know other people who haven’t done this with their client, and then later realize that this is something that their client really wanted and was really important to them, but they never had that conversation with their client to begin with.

Holly: So when it comes to exhibits, what do you tell clients, you are looking for them to get you?

Brandi: So I would rather at the beginning, have more information and be able to narrow it down from there than too little information and have absolutely nothing. So I like to tell them, if using something is important, I would like you to send it to me, and then I will make the decision as to whether or not we’re going to use it. So if it’s coming down to, you know, a kid issue, I think we need to have a photo of the kids, you know, a couple of them for the court to see. So they know who they are making decisions regarding because the parents can’t come to an agreement. I also think when it’s coming down to, you know, different topics of like school, like maybe there’s one parent who is consistent for always getting the kid late to school. And so this other parent would like their possession time to end on, you know, 6pm on Sundays instead of on Mondays, because the kid is late to school every single Monday. And so you need to have that kind of evidence to support the position of what your client is asking for.

Because if you don’t have that, then it comes down to just he said, she said. And or sometimes he said, and he said no, she said and she said. But it’s definitely one of those things where if you know, our client is the one who is doing a good job getting the kids to school, that maybe the other side is not, then we don’t want our client just to get up there and say that they know, because it’s going to be easy to poke a hole into that. I think you want to have evidence that’s really gonna support your clients positions, and what they’re really asking the court from that day.

Holly: I also usually like to see text messages, Facebook posts, calendars, where they’ve kept records of anything. I mean, text messages, and Facebook posts probably make the best evidence that I ever use in court in a lot, especially a temporary orders cases. Because it’s showing somebody is hasn’t, you know, consistently talking about changing things, or someone is consistently swearing at the other side, or whatever the case may be. It can show the side of a person that you’re not going to see on the stand. And that’s that’s usually important for the judge to see.

Brandi: Right, exactly. And I think if it’s something too where you know that the other side is gonna deny that they ever did this. And you have that evidence to show oh no, they absolutely did do this, or you can impeach them with it. That’s also a good thing to have in your arsenal to go to court with as well.

Holly: What advice do you give clients when it comes to handling cross examination?

Brandi: So number one, listen to the question that’s being asked, and make sure you understand it before you answer it. And if you don’t understand it, make sure that you ask the attorney who is examining you to rephrase the question, because you don’t understand. Okay, I think that’s the number one thing for clients to know. I also think it’s important to tell clients that, you know, if it’s not a complete yes or no answer, then they are within their realm to say that to the court and not be you know, you know, a jerk about it or anything like that on the stand, or to act like they’re being coy. But if it’s truly not a yes or no answer, then they need to say that because you don’t want to get yourself painted into a corner on something that really needs further explanation.

Holly: Right. And I’ve even heard judges tell a client, it’s a yes or no question. So I think clients have to be careful. And we have to be careful about how we advise them to handle that. Because you’re some instead of trying to say it’s not a yes or no answer, because blahdy blahdy blah, well, you’re gonna get cut off. Objection, non responsive, it’s a yes or no question. The answer might be sometimes, or the answer might be, I don’t know. And if you if you know, you coach clients to give the short answer, when it’s not yes or no, don’t get pigeonholed into saying it, but you got to keep it short. And you got to make it responsive to whatever the question was.

Brandi: Right? I agree with you 100% on that. So it’s, those are all good examples of responses to give when they’re not sure. And you know, they can’t do it for every question. That’s not you know, because otherwise they look like they’re playing games. And so it really needs to be from their perspective. You know, an honest, I don’t understand your question or, you know, it’s sometimes it’s not all the time, and it’s not, you know, all the time, yes or all the time no. And I think those are fair responses to some of the questions that people are asked on cross.

Holly: And I also tell or explain to clients that sometimes the answer is yes, but or no, but. And the good attorney on the other side is always going to object nonresponsive everything after yes, or no responses everything after no. But I tell clients, if there’s a budget, I don’t know that unless you start saying it. So yes, but objection, non responsive. If my client started to explain, even though they got cut off, I now know there was a but or there was an explanation. And I can come back and follow up on that on redirect, assuming that there’s time and assuming that I think the issue is important enough to warrant that.

Brandi: Right. I agree with you. I also think, you know, depending on the circumstances of the case, because so many people like to make recordings or videos and things like that. I think you have to set the expectation with clients early on. Recordings and videos and things like that, because it eats up your time to play them. And so you want to make sure that you are using the very best evidence that you have in order to support your client’s position. And I think that it’s important to set that expectation with clients early on, because they’re gonna, you know, they might be like, why didn’t you play that? You know, 17 minute video or something like that? And you say, well, because we only had 20 minutes a side, and that would have left me with three.

Holly: I also think it’s important to explain if, you know, say, clients into these text messages, or these Facebook posts, or whatever, they think it makes it a side look terrible. We read it, and we think, yeah, it makes you look terrible, too. And so we are going to choose not to use that. I think it’s important to help the client realize why. So that they don’t come back. He didn’t use, you know, I had all these text messages showing he was a jerk and all this. And I think it’s important to explain at least a little bit to the client, why we chose to use these certain exhibits, but not these other ones.

Brandi: I agree with you on that, too. So, and again, I would rather have more information from the client, then too little, you know, when we’re starting to ask them for things that we might want to use as exhibits, because then that gives us more things to select from, and can really funnel everything down to exactly what we want to use in the short period of time that we have.

Holly: So one of the other things that I think is important to prepare in advance with the client’s assistance, or at least that the client reviews it in advance is a summary of relief requested. Talk about what you do for that.

Brandi: So for summary relief requested on that, I always make that exhibit number one, for any kind of hearing that we have. And the reason for that is it gives the court a guide, right from the minute your client testifies as to saying, okay, this is what, you know, if I’m representing Holly Draper, this is what Holly Draper wants. And they can literally go through and say, granted, denied, or they’re making a note on it, as they’re going through and following the case along that day.

So in a summary of relief requested, depending on what you’re trying to do, what what kind of case you have, you want to put forth the things that your client’s asking for. So if you’re asking for, you know, something where let’s say you actually do have a decent shot of maybe getting a sole custody situation, right? You say I want, you know, sole custody granted or denied, then you might also put in.

Holly: You said don’t say I want sole custody, because that’s not a thing.

Brandi: So well. So let’s look at being able to be, you know, the sole conservator of the child. And so if that’s what it is, then put that down. But you know, sometimes courts aren’t going to give that because maybe they don’t think the evidence is strong enough for it. So you want to also put down alternatives for that as well. You want to put down you know, okay, well then if they’re not willing to make me the sole managing conservator of the child, then I would like to be, you know, joint managing conservator. But I want to have the rights, you know, the exclusive rights to make x, y & z decisions, or the possession schedule. I would like them to be supervised. If you’re not willing to give me supervised visits, and I would like the other party to be on sober link.

You know, and have other alternatives there that makes it really, really easy for the judge to mark down and rather than having the judge come up with their own ideas on it, too. Because I think one of the things that people can run into is that if they’re too black and white in what they’re requesting for and not open to other alternatives there, then your chances of getting what you really want are slim to none. Where if there’s a, you know, a variation of things that you might be okay with the court giving you on some level, you give them the idea, so they don’t have to go back and come up with it on their own.

Holly: I think it’s really important to that when you’re drafting that summary of relief requested, you are looking at your pleadings, and making sure that you’ve actually asked the court to give you these things, because if you haven’t, you’re going to be in a lot of trouble. So you want to do this far enough in advance that if you have to amend something you can, because as you know, the other side’s gonna object up and down if you go in asking for relief that you have not pled for.

Brandi: Right. And I think that that’s why having your client meeting, you know, the initial client meeting to kind of help start prepping for your upcoming hearing, at least, you know, two weeks in advance before your hearing, I think that that is going to allow you that time to make sure your pleadings are in order, and if you do have to amend anything to be able to get them in in time as well.

Holly: And we can really get into a habit of waiting to the last minute to prepare for hearings. And I think that helps if you have kind of a policy or procedure in your firm to say we’re going to set a meeting with the client to prepare for hearing X amount of days prior to the hearing, assuming that there are that many days before the hearing. But having that just be happen as a matter of course, where we’re going to plan these things this far out so that we’re never unprepared for a hearing. And we’re never in trouble because we haven’t pled for the right thing.

Brandi: I agree. And I think one other thing to keep in mind as an attorney, when you are doing any kind of like temporary orders or even if it’s a final hearing, you need to know your court, you need to know when exhibits are due. And every court is different. Even courts in the same county don’t always have the same deadlines. And when you have to exchange exhibits and information. It used to be pre COVID and zoom hearings that you would walk in and no one would know what your exhibits necessarily were before you started that hearing for temporary orders.

But now, so many courts are requiring attorneys to exchange those exhibits in advance. And so it could be that it’s an hour before, it could be that it’s three days before. And so as the attorney you really need to know that, and I think if once you get your court assigned to your case, or you know your court, I think that’s something you should put in the file. So you always have that readily available and handy and just ready to go on that case.

Holly: I think that is excellent advice. Well, we’re just about out of time. So but thank you for joining me today to chat about how to prepare clients for hearings and hopefully we got some good information for our fellow family lawyers out there.

Brandi: Thank you for having me.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com